Tederick v. Loancare, LLC - Appeal Vacated and Remanded

PUBLISHED UNITED ST A TES C OUR T OF APPEA LS FOR TH E FOUR TH CIRCUIT No. 25 - 1315 GAR Y TEDER ICK, individually and on behalf of all others similarly situated; LISA TEDERICK, individually and on behalf of all ot hers similarly situated, Plaintiffs – Appellants, v. LOANCARE, LLC Defendant – App ellee. ------------------------------ NA TIONA L CONSUMER LA W CENTER; ST A TE OF WEST VIRGINIA, Amici Supporting Appellants. MOR TG AGE BANKERS ASSOC IA TION, Amicus Supporting Appellee. Appeal from the United States District Court for th e Eastern District of V ir ginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:22 - cv - 00 394 - RAJ - DEM) A rg ue d: January 27, 202 6 Decided: February 23, 2026 Before KING, WYNN, and T HACKER, Circuit Judges. V acated and remande d by publi shed opini on. Judge King wrote the opinio n, in whic h Judge W ynn and Ju dge Thacker joined.

2 ARGUED: Anthony J. Majestro, POWELL & MAJESTRO, PLLC, Charleston, W est V irginia, for Appellan ts. Bryan Michael Killian, MORGAN, LEWIS & BOCKIUS, LLP, W ashington, D.C., for Appellee. ON BRIEF: Graham B. Platz, POWELL & MAJESTRO PLLC, Charleston, W est V irginia; Stephen G. Skinner, SKINNER LA W F IRM, Charles T own, W est V irginia, for Appellants. Christoph er G. Browning, Jr., Rale igh, North Carolina, John C. L ynch, E than G. Ostroff, TROUTMAN PEPPER LOCKE LLP, V ir ginia Beach, V irginia; Erica L. Calderas, HAHN LOESER & P ARKS LLP, Clevela nd, Ohi o; Brendan J. Anderson, MORGAN, LEWIS & BOCKIUS LLP, W ashing ton, D.C., for Appellee. Jason E. Caus ey, KA TZ K ANT OR STONES TREET & BUCKNER, PLLC, Princeton, W est V irginia, for Amicus Natio nal Consumer Law Center. John B. McCuskey, Attorney General, Michael Ray W illiams, S olicitor General, Caleb B. Dav id, Deputy Solicitor General, Mattie F. Shuler, Assistant Solicitor General, OFFICE OF THE A TT ORNEY GENERAL OF WEST VIRGINIA, Charleston, W es t V irginia, for Amicus State of W est V ir ginia. Sam Bragg, D allas, T exas, Nanci W eissgold, ALSTON & BIRD, W ashington, D.C., for Amicu s Mortgage Bankers Association.

3 KING, Circuit Judg e: In this appeal from the Eastern District of V ir ginia, plaintiffs Gary and Lisa T ederick (collectively, the “T edericks”) — individually and on behalf of o thers similarly situated — challenge the district court’ s adverse February 2025 a ward of summary judgment to defendant LoanCare, LLC. See T ederick v. LoanC ar e, LLC, No. 2:22 - cv - 00394 (E.D. V a. Feb. 24, 2025), ECF No. 20 4 (the “M emoran dum Opini on”). Therein, the co urt conclude d that the T edericks’ s statuto ry claim against LoanCare — pursued under W est V ir g inia Code s ections 46A -2- 127(d) (the “section 127 provision ”) and 46A -2- 128 (the “section 128 provision,” and whe n together with the section 127 provision, called the “ at - issue statutory provisions”) o f the W est V irginia Consumer Credit and Protection Act (the “ Act”) — fail s as a matter of law because LoanCare did not intentionally violate either provision. On appeal, the T edericks — with support fro m the A ttorney General of W est V irginia — maintain that the district court erred i n its Memorandum Opinion by grafting an intent element into the at - issue statutory provisions of t he Act. According to the T edericks, the at - issue statutory provisions do not require any proof of intent on the part of an alleged vio lator (that is, LoanC are). Rather, the T edericks conten d that the at - issue statutory provisions merely require proof of an event that constitutes a statu tory violation, unlike other provisions of the Act that specifically requ ire proof of an intent to violate. Meanwhile, despite previously u r ging the district court to conclude that the at - issue statutory provisions require pr oof of an intent to vio late, LoanCare has entirely pivot ed from that position on app eal. Th at is, LoanCare now throws the able district judge

4 overboar d, arguing that proof of an inten t to violate the at - issue st atutory pr ovisions is no longer an issue in this case, but that we should af firm th e judgment on alternative grounds. As explained herein, we agree with the T edericks that, pursuant to W est V irginia law, the at - issue statutory provisions do not require proof of an intentional violation, such that it was error for the district court to insert such a requirement into th e Act ’ s text. Put differently, the at - issue statutory provisions are for “strict liability, ” and they req uire no proof of an intent to violate. Otherwise, in th ese circumstances, we decline LoanCare ’s invitation to affirm on alternative grounds. A s a result, w e vacate the judgment and remand for such other and further p roceedings as may be appropriate. I. A. The plaintiffs, Gary and Lisa T ederick, purchased their home in Hedg esville, W est V irginia, in 2002. 1 In March 2004, th e T ed ericks refinanced the property through a mortgage loan that was orig inated by Mid - States Financial Group, In c. (the “Loan”). The Loan was evinced by a promissory no te (the “Note”) and secured by a Deed of T rust, both Fannie Mae and Freddie Mac Uniform Instruments, and otherwise owned by the Federal National Mortgage A ssociation. Pursuant to the Loan’ s terms, the T edericks were obliged 1 W e accept and recite herein the relevan t facts — as the district court w as obliged to do — in the light most favorable to the T e dericks, as the nonmoving party, with respect to LoanCare ’s summar y judgme nt motion o n the T edericks’ s statutory claim asserted under the Act. See, e.g., Palmer v. Liberty Univ., 72 F.4th 52, 62 (4th C ir. 2023).

5 to make mont hly pay ments of $ 875.36, commencing on May 1, 2 004, with the remaining balance due by the T edericks on or before April 1, 2034. In that regard, in terest on the Loan was to accrue on unpaid princi pal, and monthly p ayments were to b e applied as of their due date, first to interest and then to principal. See J.A. 31 (Note specifying that “each monthly payment [was to] be applied as of its scheduled due d ate and [would] be applied to interest before princip al ”). 2 The Note also allowed volunta ry “ prepayments ” of principal — su bject to certain conditions — and required that such p re payments reduce the principal, with interest accruing thereon as specified in th e Note and Deed of T rust. Id. at 32. 3 Throughout the life of the Loan, the T edericks made several of such voluntary prepayme nts. Specifically, be tween 2005 and 202 0, the T edericks made approximately 180 payments, co ntain ing both a schedule d payment and a prepay ment. When the T edericks tendered such payments, they sen t the Loan ’s servicer a single check containin g both the monthly pa yment along with the additional pre payment. And the subject lines of the checks indicate d that the T edericks’ s payment also included a “prepayment.” See J.A. 8 67. 2 Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by the parties in this appeal. 3 T o take advantage of the ir right to make “prepayments,” the T edericks had to be current on their mon thly payments and also had to n otify their lender, in writing, when they were making a prepayment. If both of those conditions were satisfied, the Note specified that the sub - servicer (i.e., LoanCare) “w[ould] use [the] Prepay ments to reduce the amount of p rincipal” owed by th e T edericks. See J.A. 32. It also authorized the sub - servicer “to apply [a] Prepayment [amount] to the accrued and unpaid interest on th e Prepayment amount before applying [the] Prepaym ent to reduce the [outstanding] p rincipal.” Id.

6 Unfortunately for the T edericks, however, the serv icer s of the Loan — including LoanCare — fa iled to apply their “ prepayment s” before monthly pa yment s. In April 2019, LoanCare became the sub - servicer of the Loan. T o that end, the T ederick s promptly notified LoanCare th at prior servicers of the Loan had misapp lied their pre payments, and they fu rthermore requested correct ive adjustments from LoanCare. Although a Lo anCare representative, a woman named “Tif fany, ” gave assurances to the T edericks that the prepayment application issue had been resolved, LoanCare did not correct its erroneous practices and continu ed to appl y the T edericks’ s final 16 combi ned pa yments in the sa me order. After several unsu ccessful attempts to obtain prepayment - related corrections from LoanCare, the T ed ericks requested a payoff statement from LoanCare in September 2020, and they paid the Loan in full shortly thereafter. A s a result of LoanCare ’s p r e payment - application practices, the T edericks say that they were im properly charged excess interes t on the Loa n, and that they are entitled to a refu nd of all the excess interest paid thereon. B. 1. In September 2022, the T edericks filed this putative class action lawsuit against LoanCare in the Eastern District of V irginia. By their initial co mplaint, the T ederick s alleged that LoanCare — as a servicer of the Loan — vio lated certain d ebt collection provisions of th e Act (i.e., the at - issue statu tory provisions), that LoanCare was unjustly enriche d by the T edericks’ s prepayments, and that LoanCare improperly converted their funds. LoanCare thereupon moved to dismiss the T edericks’ s com plaint in January 2023, invokin g, inter alia, Federal Rule of Civ il Procedure 12(b)(6), for failure to state a claim.

7 In October 2023, the district court granted LoanCare ’s Rule 12(b)(6) motion to dismiss the T edericks’ s Act - based claim (to the ex tent that claim was predicated on there being a “fraud” perpetrated by LoanCare), along with the ir unjust enrichment claim. Those claims were dismissed by th e court without prejudice, and the court granted the T edericks leave to amend. Otherwise, the court resolved to deny LoanCa re ’s motion to dismiss with respect to the T ederick s’ s statu tory claims under the Act, along with their conversion claim. The T edericks filed a second am ended com plaint in October 2 023, which is the operative complaint in these proceedin gs. See T ederick v. LoanCar e, LLC, No. 2:22 - cv - 00394 (E.D. V a. Oct. 25, 2023), ECF No. 30 (th e “Second Amend ed Complaint”). 4 Soon thereafter, in Nov ember 2023, LoanCare moved to dis miss the Second Amended Complaint, pursuant t o Feder al Rule of Civil Procedure 12(b)(6). In March 2024, the district court granted LoanCare ’s motion to dismiss the T edericks’ s unjust enrichment and conversion claims against LoanCare, but otherwise declined to dismiss the T edericks’ s statutory claim s in Count I, as provi ded b y the at - issue statutory provisions of the Act. 5 4 W e observe that T edericks initially filed an “Amended Comp laint” on October 17, 2023. By Joint Stipulation of Octob er 24, 2023, the parties “ agree [d] and stipulate [d] that [the T edericks] may file [their] Second Amended Complaint. . . to correct scrivener ’ s errors in the identification of [LoanCare ] in the First Amended Complaint.” See T ederick v. LoanCar e, LLC, No. 2:22 - cv - 00394 (E.D. V a. Oct. 24, 2023), ECF No. 29. 5 The T edericks do not appeal the district court’ s dismissa l of their unjust enrichment and conversion claims. A ccordingly, we do no t discuss those claims further herein.

8 2. Following discovery proceedings in federal court, the T edericks moved for class certification in July 2 024, pursuant to Rule 23 of the Federal Rules of Civil Procedure. A few months later, in November 2024, LoanCare moved for summar y judgme nt on Cou nt I of the Second Amende d Complaint — that is, the only claim then left in the litigation. In support of its summary judgmen t request, LoanCare ar gued that it had correctly applied the T edericks’ s prepayments on the Loan. Of importance here, LoanCare also asserted that, “[e]ven if [it] had misunderstood p ayment application requirements and misapplied [the T edericks’ s] payments ... ‘billing disputes’ based on alleged misapplication of mortgage payments do not supply the intentional ‘frau dulent, deceptive or misleading representations’ or ‘unfair o r unconscionable means’ to collect a debt that the [Act] requires to find a violation and impose liability.” See T ederick v. LoanCar e, LLC, No. 2:22 - cv - 00394, at 1 (E.D. V a. Nov. 2 2, 2024), ECF No. 75 (emphasis added). Specifically in voking two district court decisions — Rice v. Gr een T r ee S ervicing, LLC, 2015 WL 5443708 (N.D.W. V a. Sept. 15, 201 5), an d Perrine v. Branch Banki ng & T rust Co., 2018 WL 1 1372226 (N.D. W. V a. Sept. 25, 2 018) — LoanCare a r gued as follows: [A] loan servicer does no t violate the [Act] even wh ere it incorrectly interprets payment application requirements, misapplies paym ents, and sends incorrect monthly statements to a borrower leading to a billing dispute. Instead, the [Act] requires establishing intentional deception or unfair/unconscionable conduct by a loan servicer, which [the T edericks] cannot do on the record in this case. Id. at 2 (emphasis added); see also id. at 20 (LoanCare maintaining that “ Rice and Perrine have ... established that even where a loan servicer actually misapprehends applicab le

9 requirements, actually misapplies amounts to a loan account, and therefore sends the borrower account statements that are actually incorrect and misstate the amount due, the loan servicer does not violate the [Act’ s] Section 127 or 128”); id. at 21 (LoanCare assertin g to district court that “ Rice and Perrine show that the [Act] is n ot intended to be a ‘gotcha’ statute that makes any error in an acco unt statement or any alleged misinterpretation of contract terms actionable versus truly deceptive, unfair, or unconscionable conduct”). 6 By their responsiv e submission, the T edericks maintained that LoanCare was asking the district court to consider the “same legal arguments. .. premised upon an understanding of the law that [the cou rt] ha[d] already ... rejected” in ruling on LoanCare ’ s prior Rule 12(b)(6) motions to d ismiss. See T ed erick v. LoanC ar e, LLC, No. 2:22 - cv - 00394, at 1 (E.D. V a. Dec. 13, 20 24), ECF No. 90. According to th e T edericks, LoanCare did not properly apply thei r prepa yment s, and LoanCare ’s “ own evide nce [that it d id] [w as] p urely contradictory,” thereby precluding an award of summary judgme nt to LoanCare on Count I of the Second Amended Complaint. Id. at 16. And the T edericks resisted LoanCare ’s 6 I n its reply in supp ort of su mmary judgment, LoanCare — fo r the first time — invoked W est V ir ginia Code section 46A -5- 101(8), referred to by the practicing ba r as the “bona fide error defense ” to liability. As d iscussed infra, P art III.B.2, LoanCare ’s tardy invocation of that defense to liability was not “ app arent ” in the und erlying proceedings. See, e.g., Ray Communs., Inc. v. Clear Chann el Commc’ns, Inc., 673 F.3d 294, 299 (4t h Cir. 2012) (explaining th at when “the movant seeks summary judgment on an affirmative defense, it must conclusively establish all essen tial elements of that defense”).

10 invocation of Rice and P errine, contending that LoanCare ’ s intent to violate the at - issue statutory provisions is irrelevant to those provision s of the Act. Id. at 21 - 23. 7 3. By its Memorandum Opinion of February 2025, the district court — witho ut addressing the T edericks’ s yet - pending Rule 2 3 certification mo tion, or their af firmative request for an award of summ ary judgment on Count I of the Second Amended Co mplaint — grant ed LoanCare ’ s motion for summary judgmen t on the T edericks’ s Count I claim that LoanCare had violated the at - issue statutory p rovisions. T herein, the court branded this putative class action lawsuit as being nothing more than a simple and routine “billing dispute ” between the parties, with the T ederi cks and LoanCare merely quibbling over the correct application of the T edericks’ s Loan prepayments. See Memora ndum Opini on 10. Notably here, the Memorandum Opini on determined that, irrespectiv e of whether the T edericks’ s pre payment s had been properly applied by LoanCare, the T edericks’ s statutory claims under the Act are n ot legally cognizable. According to the Memorandum Opinion, “the question is not simp ly whether and to what extent [LoanCare ] got this 7 W e observe that, prior to the Memorandum Opinio n’ s issuance by the district court in February 2025, the T edericks sought a n affirmative summary judgment award of their own on Count I. S ee T ederick v. LoanCar e, LLC, No. 2:2 2 - cv - 00394 (E.D. V a. Feb. 18, 202 5), ECF Nos. 2 02 & 203. Lo anCare never re sponded to that request, however, and the court never ruled on that motion, given its disposition relative to LoanCar e ’ s summary judgment motion. Th e T edericks do not raise that issue on appeal, nor do they seek entry of summary judgment in their favo r. Accordingly, we do not address the T edericks’ s summary judgment request herein, and we leave th at issue for the remand proceedings.

11 wrong.” See Memorandum Opinion 10. 8 Rathe r, based on its assessment of the Act and W est V irginia common law fraud, the Memorandum Opinion resolved that “[t]he proper inquiry is whether [LoanCare] meant to get it wrong.” Id. at 10 -12 (citing, inter alia, Rice v. Gr een T r ee Servicing, LLC, 20 15 WL 5443708 (N.D. W. V a. Sept. 15, 2015), and Perrine v. Branc h Banking & T rust Co., 2018 WL 1 1372226 (N.D. W. V a. Sept. 25, 2018)). In this light, being satisfied tha t there was no record e vidence that LoanCare intended to charge the T edericks additional interest that was not actually owed by them on the Loan — and otherwise d eclining to consider whether LoanCare properly applied pre payments on the Lo an — the Memorandum Opinion concluded that the T edericks had failed to identify a genuine issue of material fact as to whether LoanCare had inte ntionally utilized fraudulent or unfair d eb t collection practice s. See Memoran dum Opini on 13 (explaining that “[a] lthough Prepa yments may have been applied incorr ectly [by LoanCare ], LoanCare ’s conduct was not fraudulent, deceptive, or m isleading, as required. .. to find a violation of [the Act ] ” (emphasis added)). A s the Memorandum Opi nion recited, “at most, LoanCare was merely wrong . . . [but] simply being wrong is not conduct 8 A s to wh ether LoanCare had p roperly applied the T edericks’ s prep ayments, the Memorand um Opini on expressly declined to resolve that issue. See Memorandum Opini on 8 (“ The Court need not concl ude whet her Loa nCare properly applied the T edericks’ [s] Prepayments. The Court concludes that LoanCare ’ s conduct, even if they misapplied the Prepayments, does not rise to the level o f a ‘ false representation.’”).

12 for which the [Act] covers.” Id. at 1 1. W ith that satisfactio n, the Memorandum Opini on awarded summary j udgment to LoanCare on Co unt I of the Second Amende d Compla int. 9 * * * The T edericks timely noted this appeal from th e Memorandum Opinion in March 2025. And we possess final d ecision jurisdiction pursuant to 28 U.S.C. § 129 1. II. Our Court review s de novo an award of summary judgment. See, e.g., Palm er v. Liberty Univ., Inc., 72 F.4th 52, 62 (4th Cir. 2023); Bright v. Coastal Lumber Co., 962 F.2d 365, 368 (4th Cir. 1992). T o that end, summary judgment is only appropriate if — view ing the facts in the light mo st favorable to the nonmoving party (here, the T edericks) — the moving par ty (that is, Loa nCare) has demonstrated that “‘there is no genuine dispute as to any material fact and the movant is entitled to judgm ent as a matter of law.’” See FDIC v. Cashion, 720 F.3d 169, 173 (4t h Cir. 2013) (qu oting Fe d. R. Civ. P. 56(a)). 9 We recognize that the Memorandum Opinion expressed doub t as to whether LoanCare q ualified as a “debt collector” under the Act. Despite that passing observat ion in dicta, the Memorandum Opinion explained that “[r]egardless of [LoanCare ’ s] status as a debt collector, [s]u mmary [j]udgment in their favor is appropriate.” See Memorandum Opinion 1 3. T ellin gly, LoanCare does not raise th is issue o n appeal as an alternat ive ground for affirmance, nor did it argue in the underlying proceedings that it was not a “debt collector.” In any event, we are satisfied that LoanCare so qualifies as a “debt collector ” under the Act. See, e.g., Edge v. Roun dpoint Mor tg. Ser vici ng Corp., 2024 WL 4336739, at *5 (N.D. W. V a. Sep t. 27, 2024) (explaining th at “W est V ir ginia law makes clear that [the defendant], as a loan servicer, falls within the [Act’ s] definition of a debt collector ”); Alexander v. Carrington Mortg. Servs., LLC, 23 F.4t h 370, 375 (4th Cir. 2022) (concl uding that “collector” who charged “amount” not “expressly authorized by the agreement creating the debt or permitted by law ” was a “debt collector” under federal act).

13 III. On appeal, the T edericks maintain that we should vacate the judgment and remand for further proceedings on their at - issue statutory provis ion clai ms in Count I. W ith s trong support fr om the Attorney General of W est V irginia, th e T edericks assert that the Memorand um Opini on incorrectly ruled that the at - issue statuto ry provisions each required proof of an intentional violation thereof by LoanCare. According to the T edericks, “the. .. court did not g et. . . W est V ir ginia law righ t,” in that it “interpreted the substan tive provisions of the [Act]. .. to require [a] proof of in tent.” See Br. of Appellant 14 - 15. Meanwhile, despite previousl y ur g ing the district court in the underlying proceedings to read such an “intent” requiremen t in to the at - issue statutory provisions of the Act, LoanCare — rather surprisingly — now throws the district judge “under the bus,” taking a different approach on appeal. As L oanCare now sees thing s, the T edericks are “try[ing] to distract by arguing that the [Act] does not require them to prove intent (when no one said it did)[.]” See Br. of Appellee 7. From there, LoanCare argues that we n eed not wade into the statutory interpretation question of whether the at - issue statutory provisions do, in fact, require an intent on the part of the violator, in that we can affirm the judgment on alternative grounds appearing in the record. That is, L oanCare asserts that it correctly ap plied the T edericks’ s Loan prepayments, such that it was entitled to summary judgment on that basis. Additionally, LoanCare maintains that af firmance is warranted

14 because it is entitled to the liab ility p rotections af fo rded to debt collectors v is -à- vis the “ bona fide error defense, ” pursuant to W est V irginia Code section 46A -5- 101(8). In these circumstances, w e agree with th e T edericks that th e at - issue statutory provisions do not require proo f of an intentional violation thereof by LoanCare. Rather, the at - issue statutory prov isions of the Act are for “strict liability,” and they accordingly require no proof by a plaintiff of an intent to violate by an alleged violator (i.e., LoanCare). Furtherm ore, we are c onstrained to decline LoanCare ’ s inv itation to affirm on alternative grounds, given that the “grounds” raised by LoanCare are anything but apparent in the record. Rather, since we are a court of rev iew and not “first view,” we are of opinion that such issues can be addressed by the district cou rt — in the first instance — on remand. A. Before reaching the heart of our statu tory interpretation analysis, we will firs t provide an o verview of the at - issue statutory provisions underlying the claim s in Count I of the Secon d Amended Compl aint, followed by a rundown of th e relevant statutory interpretation princip les under W est V irginia law. After those summaries, we will further explain why LoanCare is not entitled to an award of summary judgme nt on Cou nt I. 1. a. W e begin — as we mu st — w ith the applicable text of the Act. See, e.g., United States v. Hawley, 919 F.3d 252, 255 (4th Cir. 2019) (“A s in all cases of statutory interpretation, our inquiry begins with the te xt of the statute.” (citation modified)). As heretofore mentioned, Count I o f the Second Am ended Complaint is predicated on

15 LoanCare violating the at - issue statutory provisions — that is, the sect ion 127 and 12 8 provisions of the Act. For its part, the secti on 127 provi sion pro vides, in full, as follows: No debt collector shall use any fraudulent, deceptive or misleading representation or means to collect or attempt to collect claims or to obtain information concerning consumers. W ith out limiting the general application of the foregoing, the following con duct is deemed to violate this section: (a) The use of any business, company or organization name while engaged in the collection o f claims, other than the true name of the debt collector ’ s business, c ompany or or ganization; (b) Any false representation that the deb t collector has in his possession information or something of value for the consumer that is made to solicit or discover information abo ut the consumer; (c) The failure to clearly disclose th e name and full business address of the person to whom the claim has been assigned for collection, or to whom the claim is owed, at the time o f making any demand for money; (d) Any false representation or implication o f the character, extent or amount of a claim against a consu mer, or of its status in any legal proceeding; (e) Any false representation or false implication that any debt collector is vouched for, bonded by, af filiated with or an in strumentality, agent or official of this state or any agency of the federal, state or local government; (f) The use or distribution or sale of an y written communication which simulates or is falsely represented to be a document authorized, issued or approved by a cou rt, an of ficial or any other legally constituted or authorized authority, or which creates a false impression about its source, authorization or approval; (g) Any representation that an existing obligation of the consumer may be increased by the addition of attorney's fees, investi gation fees, service fees or any other fees or charges when in fact s uch fees or charges may not legally be added to the existing obligation; and (h) Any false representation or false imp ression about the status or true nature of or the services rendered by the debt collector or his busin ess.

16 See W. V a. Code § 46A -2- 127. Meanwhile, the section 128 provision is a near identical “twin” to the section 1 27 provision. Unlike its counterpart, howeve r, the section 128 provision prohibits the use o f “unfair” or “unconscionable means” to collect a debt: No debt collector may use u nfair or unconscionable means to collect or attempt to collect any claim. W ithout limiting the general application of the foregoing, the following conduct is deemed to violate this section: (a) The seeking or obtaining of any written statement or acknowledgment in any form that specifies that a consumer ’ s obligation is one incurred for necessaries of life wh ere the original obligation was not in fact incurred for such necessaries; (b) The seeking or obtaining of any written statement or acknowledgment in any form containing an affirmation of any obligation by a consumer who has been declared bankrupt except where such affirmation is obtained pursuant to applicable bankruptcy law; (c) The collection or the attempt to collect from the consumer all or any part of the debt collector ’ s fee or ch ar ge for services rendered .. . ; (d) The collection of or th e attempt to collect any interest or o ther charge, fee or expense incidental to the principal obligation un less such interest or incidental fee, charge or expense is expressly authorized by the agreement creating or modifying th e obligation and by statute or regulation; (e) Any communication with a consumer made m ore than three business days after the debt collector receives written notice from the consumer or his or her attorney that the consumer is represented by an attorney specifically with regard to the subject debt .. .; and (f) When the debt is beyond the statute of limitations for filing a legal action for collection, failing to provide [a specific] disclosu re informing the consumer in all written communication with such consumer that [that they can n o longer be sued to collect the d ebt or have the debt affect their credit]. . . . See W. V a. Code § 46A -2- 128.

17 b. Having recited th e at - issue statutory provisions, we turn to the legal principles that govern our statuto ry interpretation analysis. In that reg ard, we have recognized that when a “case invokes our diversity jurisdiction, we apply controlling state law on settled issues and predict how the state’ s high est court would rule on unsettled issues.” See Y oung v. Equinor USA Onshor e Pr ops., Inc., 982 F.3d 201, 20 6 (4th Cir. 2020); Whitmir e v. S. Fa rm Bur eau Life Ins. Co., 52 F.4th 153, 157 (4th Cir. 2022). 10 As our Court explained in the Whitmir e decision, a federal court should apply, inter alia, a s tate’ s relevant “ rules of statutory construction ” in construing a n at - issue state statute. See 52 F.4th at 157. In this light, the Sup reme Court of Appeals of W est V irginia has ruled that “ [t] he primary object in construing a st atute is to ascertain an d give effect to the intent of the Legislature.” See Sy l. Pt. 1, Smith v. States W orkmen’ s Comp. Comm’r, 219 S.E.2d 36 1, 362 (W. V a. 1975). T o discern su ch intent, a reviewing court is obli ged to begin it s analysis by “look[ing] first to the statute’ s language.” See Cline v. Mirandy, 765 S.E.2d 583, 586 (W. V a. 2014) (quoting State ex r el. R oy Allen S. v. Stone, 474 S.E. 2d 554, 56 0 (W. V a. 1996)). Stated differently, courts must begin by lookin g to the very text of an at - issue 10 We acknowledge th at the Supreme Court of Appeals of W est V irginia has not ruled on the precise question of w hether the at - issue statutory provisions of the Act each require proof of an intent to violate by a debt collector, in order for a plaintiff to maintain a cogniza ble claim for relief. Accordingly, ou r analysis is an “ Erie guess” — that is, in the words of then - Chief Justice W o oton, we are “ divi n [ing] and enforce[ing] the rule that [we] believe[] th [e] [W est V irginia high] court would choo se if the case were pending” in that forum. See City of Huntington v. Ameri s our ceBer gen Drug Corp., 915 S.E. 2d 828, 844 (W. V a. 2025) (W ooton, C.J., dissenting) (citation mod ified). T o that end, we appreciate the Attorney G eneral’ s enlightening and helpful involvement in this appeal.

18 statute. On that score, “a cardinal rule of statuto ry construction is that significance and effe ct must, if possible, be given to every section, clause, word or part of the statute.” See Meadows v. W al - Mart Stor es, In c., 530 S.E.2d 676, 687 (W. V a. 1999) (citation modified). Of great impor t ance here, if the statute’ s t ext is clear and unambiguous, a court simply appl ies the w ords as written. See, e.g., Syl. Pt. 3, Lehman v. United Bank, Inc., 719 S.E.2d 370 (W. V a. 201 1) (“Where the langu age of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.” (qu oting Syl. Pt. 2, Cr ockett v. Andr ews, 172 S. E.2d 38 4 (W. V a. 1970))); see also Syl. Pt. 1, State v. Jarvis, 487 S.E.2d 29 3 (W. V a. 1997) (“A statutory provision which is clear and unambiguous and plainly expresses the legislative in tent will not be interpreted by th e courts but will be given full force and effect.” (quoting Syl. Pt. 2, State v. Epperly, 65 S.E.2d 48 8 (W. V a. 1951))). That is, “[i]f the text, given its plain meaning, answers the interpretive q uestion, the language must prevail and further in quiry is foreclosed.” See Ancient Ener gy, Ltd., v. Fer guson, 806 S.E.2d 154, 157 (W. V a. 2017) (citation m odified). If, on the other hand, the statute ’ s language is “ ambiguous, ” then a court may resort to traditional tools o f statutory construction to discern th e meaning o f its language. See Syl. Pt. 1, Fa rley v. Buckalew, 414 S.E.2d 454 (W. V a. 1992) (“A statute that is ambiguous must be construed before it can be applied.”). Importantly, courts canno t write their own policy preferences into th e text of a statute. See State v. Richar ds, 526 S.E.2d 539, 543 (W. V a. 199 9) (“[I]t is not the p rovince of the courts to make o r supervise legislation, and a statute may not, under the guise of in terpretation, be modified, revised, amended, distorted, remodeled, or rewritten.” (quoting S tate v. Gen. Daniel Mor gan Post No. 548 V.F.W., 1 07

19 S.E.2d 35 3, 358 (W. V a. 1959))). Rather, a court must construe the statute in a m anner that carries out the Legislature’ s intent. See, e.g., Davis Mem’l Hosp. v. W. V a. State T ax Cmm’r, 671 S.E.2d 682, 688 (W. V a. 2008) (“Wh en endeavoring to construe the meaning o f an ambiguous statute, we must be mind ful that t he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature. ” (citation modified)). 2. Against this backdrop o f the text of the at - issue statutory provisions and go verning legal principles und er W est V irginia law, the relevant inquiry that emer ges is twofold: (1) do the at - issue statutory p rovisions plainly require the T ed ericks to prove that LoanCare acted with an intent to violate either of those prov isions; and (2) if not, what is the meaning of those provisi ons, based upon application of general W est V ir ginia principles of statutory construction? In these circumstan ces, the dispositive answer to our analysis ultimately emerges at ste p one: by their plain and unambiguous language, the at - issue statutory provisions do not require any intent to v iolate on the part of the alleged violator (that is, LoanCare). Rather, the at - issue statu tory provisions of the Act si mply require proof of a violation thereof, eith er inten tionally or unintentionally — i.e., they are for “strict liability.” E ven if some ambi guity exist s concern ing the at - issue statutory provisio ns, however, we are satisfied that t he result would yet be the same. T he Act is a remedial enactment that mu st be liberally construed to hono r the Legislature’ s intent o f protecting consumers in the Mountain S tate. As such, grafting a n “intent” element into the at - issue statutory provisions would contra vene the underlying history and purpose of the Act.

20 a. i. We begin our statutory analysis with the text of the section 127 provision of the Act, which is the first statutory provision that forms the basis of the claim asserted in Count I. As the T edericks and the Attorney General of W est V irginia maintain, that statutory provision relates to debt - related “rep resentations” and “means.” See W. V a. Code § 46A - 2- 12 7. In relevant part, the section 127 pr ovisi on commands that “no debt collector shall use any fraudulent, deceptive or misleading m isrepresentation or means to collect or attempt to collect claims or to obtain information concernin g consumers.” Id. (citation modified). And it applies to “debt co llectors” — a term defined by the statute itself, id. § 46A -2- 12 2(d) — and prohibits the use of “any” fraudu lent, deceptive, or misleading representation or means to collect “claims,” a term defined by section 46A -2- 12 2(b). From there, the section 127 provision identifies specific conduct that always violates the bro ader prohibition, “with out limiting the general application of the fo regoing.” See W. V a. Code § 46 A -2- 12 7. That is, the statute provides a non - exhaustive list of the conduct that always falls un der the general prohibition. Notably, su bsection (d) of the section 127 provision forbids “any false represen tation or implication of the character, extent or amount of a claim against a consumer, or of its status in any legal proceeding.” Id. § 46A -2- 12 7(d). Here, the district court did no t deem the foregoing language of the section 127 provision to be at all “ ambiguous. ” Rather, the court first con sidered the genera l prohibition of the secti on 127 provision, th en seized on th e term “fraudulent,” add ed a word (i.e., “act”) to “fraudulent,” and th en resolved that a “fraudulent act” — as defin ed by a

21 dictionary, not the Act — requires a showing of “[c ] onduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude.” See Memorandum Opi nion 8. Predicated on that understa nding, the court ruled — as a matter of W est V irginia law — that LoanCare had only made a “simple mistake, ” as opposed to intentionally violating the Act, such that the T edericks could not maintain a claim under the section 127 provision. Id. at 10. Put simply, we are constrained to reject the district co urt’ s app roach. It ignores the plain languag e of the Act and “reads in” language (i.e., a requirement that a plaintiff must show an intentional violation by a debt collector) that is no t in its text. As W est V ir ginia’ s Attorney General aptly points out on that score, the court’ s substitution of “a dictionary definition of ‘fraudulent act’ (found in one part of the statute) for ‘false representation’ (found in another) ... [d oes not] give ‘significance and effect ... to every section, clau se, word or part of the statute.” See Br. of A micus State of W. V a. 8 (quoting Meadows, 530 S.E.2d at 6 87). Instead, the court “arbitrarily read s into a statute th at which it does not say.” See Br ooke B. v. Ray C., 738 S.E.2d 21, 31 (W. V a. 2013) (citatio n modified). Contrary to the district court’ s view, the mo re correct read ing of the section 127 provision rev eals that the W est V irginia Legislature defined “any fraudulent, deceptive or misleading representation o r means” by providing specific — but non - exhaustive — examples of “conduct deemed to violate” the provision. See W. V a. Code § 46A -2- 12 7. That is, the examples that are en umerated in subsections (a) thro ugh (h) of the section 127 provision explain what the L egislature considers to be a “fraudulent, deceptiv e or misleading representation ” in each and every situation. C ritically, those examples cannot

22 — and thus do not — supplant the general prohibition encompassin g all conduct that involves “ any fraudulent, deceptive or misleading representatio n or means.” Id. 11 T o that end, we ob serve that the secti on 127 provi sion’ s embrace of “any” such representation is significant to our statutory in terpretation analysis. As W est V irginia Justice Darrell V. McGraw, Jr., explaine d in Syllabus Point 2 of the 1980 deci sion of Thomas v. Fir estone T ir e & Rubber Co., “the word ‘any,’ when used in a statute, should be construed to mean any.” See 266 S.E. 2d 905 (W. V a. 1980); Shaffer v. F ort Henry Sur gical Assocs., 599 S.E.2d 8 76, 881 (W. V a. 2004); W illiams v. W. V a. Dep’ t of Motor V ehicles, 419 S.E.2d 474, 477 (W. V a. 1992); R omer o v. Barr, 937 F.3d 282, 2 92 (4th Ci r. 2019) (“[T] he word ‘any’ has an expansive meaning, that is, one or some indiscrimin ately of whatever kind. ” (citation modified)). In this situation, we agree w ith the T edericks and W est V irginia’ s Attorney General that “any false representation ” therefore must “embrace[] representations that are untrue, deceitful, lying, not genuine, inauthentic, wrong, or erroneous, whether by intent, acciden t, or mistake.” See Br. of Amicus State of W. V a. 9. Perhaps most compelling, ho wever, is the T edericks’ s contention that, because other provisions of the Act require an intent to violate on the part o f an alleged violator, the 11 Our conclusion that the section 1 27 provision unambiguously does not require proof of intent to violate also fin ds solid support in dictionary definitio ns of the term “false representation,” which readily support the T edericks’ s statuto ry claim against LoanCare, in light of the word “false.” T o be sure, Black’ s Law Dictionary defines “false” as things that are “untrue,” “deceitful,” “lying,” “no t genuine,” “inauthentic,” “wrong,” and “erroneous.” See False, Black’ s Law Dictionary (12th ed. 2024). And crucially, “what is false can be so by intent, by accid ent, or by mistake.” Id. (em phasis added); cf. Misr epr esentation, Black’ s Law Dictionary (12th ed. 2024) (specifying that “an assertion need not be fraudulen t to amount to a misrepresentation” or “false represen tation”).

23 section 127 provision — by its plain language — does not. See Br. of Appellan t 25 (explaining that “we know from reviewing the [Act ] as a w hole that the Legislature did not inten d to require intent as an element of § 46A -2- 12 7 ... because where the Legislature meant for intent to be a required element. .. it did so specifically”). Indeed, the T edericks point to nu merous other ex amples of provisions in the Act that d o require a show ing of intent. See, e.g., W. V a. C ode § 46A -2- 12 5(b), (d) (requ iring “intent to annoy, abuse, oppress or threaten” in prohibition s on debt collectors telephoning consumers repeatedly or without disclosing identity); i d. § 4 6A -4-1 08 (specifying that “[a] regulated con sumer lender may not use multip le loan agreements with intent to o btain a higher loan fin ance charge than would otherwise be permitted” under law); id. § 46A -4-1 09(5)(c) (prohibiting “making any loan secured by any encumbrance on residential property with the intent that the loan will not be repaid and that the lender will obtain title to the p roperty through foreclosure”); id. § 46A -6-1 02(7)(I), (J), (M) (requiring showing of intent to meet definition of “ [u] nfair method s of competition and unfair or deceptive acts or practice s”); id. § 46A -6- 1 10 (a)(1) (specifying that “[n]o person may. . . [s]olicit or accept a postdated check with the intent o f presenting it for payment prio r to the date listed on the check”); i d. § 46A - 6G - 2 (recognizing that “[n]o person may initiate the transmission of an unauthorized electronic mail message w ith the intent to deceive and defraud”). G iven those several provisions, it is clear that the W est V irginia Legislature did not intend fo r there to be a n “ intent ” requiremen t for a consumer to prove a violatio n of the section 127 prov ision.

24 ii. Moving on, the statutory analysis for th e section 128 provision — that is, the second statutory provision that forms the basis of the claim asserted by the T edericks in Count I — is largely the same as that articulated above for the sectio n 127 provision. The section 128 provis ion begins with a broad prohib ition: “No debt collector may use unfair or unconscionable means to collect or to attempt to collect any claim.” See W. V a. Code § 46A -2- 128. From there, it also provides a non - exhaustive list of offending conduct that will follow: “W itho ut limiting the general app lication of the fore going, the fol lowing conduct is deemed to violate this section.” Id. A mong thos e exa mples is “the collection of or the attempt to collect an y interest or other charge, fee or expense incidental to the principal obligation unless such in terest or incidental fee, charge or expense is expressly authorized by the agreement ... and by statute or reg ulation.” Id. § 46A -2- 12 8(d). J ust like the section 127 provision, nothing in the text of the section 128 provision suggests that a plaintiff consumer must prove that a defendant debt collector acted intentionally. Cf. Monongahel a Power C o. v. Buzmisnky, 850 S. E.2d 685, 690 (W. V a. 2020) (recognizing that structure is relevant in statu tory construction context). Rather, the plain and unambiguous text of section 46A -2- 128 reflects that W est V irginia law starts with a strong presumption that a debt collector can not char ge interest unless such interest i s “expressly” authorized by ag reement, statute, or law. T hat alo ne should giv e a debt collector a “yellow light” of caution when it comes to interest, fees, and char ges. See, e.g., United States v. Gr ote, 961 F.3d 105, 1 17 (2d Cir. 2020) (obse rving h ow “man y” civi l usury

25 statutes “impose no state of mind requirement at all”). And critically, it r einforces our conclusi on that “ intent ” is not required to prove a violation of the section 128 provision. * * * B y their pl ain and una mbigu ous language, the at - issue sta tutory pr ovisions do not require th e T edericks to demonstrate that LoanCare acted in an “ intentional ” man ner to violate either provision of the Act. Rather, those provisions are bot h “strict liability” provisions that require no p roof of an intent to vio late. And the Memorandum Op inion’ s addition of such a requirement into the plain text thereof is legally erroneous. As our good brethren on the Supreme Court of Appeals of W est V irginia hav e recently explained, t he courts should not and will not “read a word and punctuation into a statute that are not there.” S ee Neidig v. V alley Health Sys., 919 S.E.2d 52, 61 (W. V a. 2025). As a result, w e cannot — and will not — bless the Memorand um Opini on’ s ruling “to add to [the] statutes something the Legislature purposely o mitted.” S ee Br ooke B., 738 S.E.2d a t 31. b. E ven if the at - issue statutory provisions w ere somehow deemed “ambiguous,” we are yet of opinion that the Memorandum Opinion’ s s tatutory interpterion ruling is erroneous. On that sco re, the Supreme Court of Appeals has observed that, i f a statute’ s text is “ambiguous,” then the courts must “ascertain and give effect to the intent of the Legislature.” See Smith v. State W orkmen’ s Comp. Comm’r, 219 S. E.2d 361, 365 (W. V a. 1975). Simply put, the legislative intent of the Act favors a broad interp retation construed to protect consumers, and it firmly counsels against imposition of a ny int ent requirement.

26 i. As background, the Mountain State — like many o ther States across our Nation — began its legislative ef f ort of drafting a comprehensive consumer protection law in the late 1960s. See V incent P. Cardi, Th e W est V ir ginia Consumer Cr edit and Pr otection Act, 77 W. V A. L. R EV. 40 1, 41 1 (1975). 12 T o achieve its goals, the Legislature blended a “hybrid of the Uniform Consumer Credit Code, the National Consumer Act, and some sections from then - existing W est V irginia law.” See White v. W yeth, 705 S.E.2d 828, 833 (W. V a. 2010). By the mid - 1970s, th e Legislature ratified the Act. See Cardi, supra, at 41 1. Striking a “ delicate” balance “between the interests o f creditors and the interests and protection of debtors,” the Legislature took great care to ensure that the Act’ s goals would be achieved, given the State’ s blue - collar h istory across the precedin g decades. See Cardi, supra, at 51 6 (explaining that, u pon enactment of the Act, “ [t] he coal miner who for forty years saw every penny of his earnings taken by the company sto re is freed”). T o that end, the Legislature prophetically anticipated that “certain creditors and d evious sellers [would] 12 W est V irginia was not alone in d rafting consumer protection law s in the late 1960s and early 1970s. Since then, th e courts in various states have declined to impose heightened pleading standards and in tent requirement into those broad, remedial schemes. See, e.g., A very v. State Farm Mut. Au to. Ins. Co., 835 N.E.2d 801, 856 (Ill. 2005); Anderson v. Bar clay’ s Cap. R eal Est., Inc., 989 N.E.2d 997, 100 0 (Ohio 2013); W illow Springs C ondo. Ass’n, Inc. v. Seventh BRT Dev. Corp., 7 17 A.2d 77, 99 - 100 (Conn. 199 8); State ex r el. Miller v. V ertrue, Inc., 834 N.W. 2d 12, 30 - 32 (Iow a 2013); Sta te ex. r el. Spaeth v. Eddy Furni tur e Co., 386 N.W.2d 901, 903 (N.D. 1986). Only three states — Colorado, Nevada, and W yoming — “condition. .. statutory remedies upon proof of the business’ s knowledge or intent in all or a significant number of circumstances.” See Consumer Pr otection in th e States: A 50 - State Evaluatio n of Unfair and Deceptive Practices Laws, N AT ’ L C ONSUMER L. C TR., at 1 (Mar. 2018), available at https://bit.ly/4 kaZXxj [https://perma.cc/YB6B - U268 ].

27 find ways and technicalities to avoid a specific provision designed to prohibit a certain practice or areas of practice.” Id. at 51 5 n.528 (quoting Statement of Del. W. C. Field to Conf. Comm. on W. V a. Consumer Cr edit Pr ot. Act, 6 1st Leg., Reg. Sess. (1974)). As such, the Legislature resolutely filled the A ct with broad language — along with a powerful remedial purpose — to ensure that W est V irginians “would not have to go back to the Legislature every time a deceptive seller derive[d] a new fraudulent technique.” Id. at 513. Considering this well - docume nted history, the W est V irginia h igh court h as long and recurrently emphasized the Act’ s very broad remedial purpose — specifically, th at the Act “is a remedial statute intended to protect consumers from unfair, illegal and deceptive business practices, and that it must be liberally construed to a ccomplish that purpose.” See Harper v. Jackson Hewitt, Inc., 706 S.E.2d 63, 72 (W. V a. 2010) (emphasis added). Ind eed, the Supreme Court of Appeals has also routin ely underscored the f act that the “pu rpose of the [Act ] is to ... provid[e] an avenu e of relief for consumers who would otherwise have difficulty proving th eir cause under a more traditional cause of actio n.” See State ex r el. McGraw v. Scott Runyon Pontiac - Buick, Inc., 461 S.E.2d 51 6, 523 (W. V a. 1995). ii. W ith such a broad remedial purpose top of mind, we return to the Memorandum Opinion’ s addition of an intent to violate element in to the text o f the at - issue statutory provisions. S eizing on a single sentence fro m a W est V irginia federal co urt decision of 2014, the Memora ndum Opi nion of the district court resolved that the Act’ s underlying purpose was “not to impose harsh civil penalties for simple mistakes.” See Memorand um Opinion 10 (q uoting Bourne v. Mapother & Mapother, P.S.C., 998 F. Supp. 2d 495, 505

28 (S.D. W. V a. 2014)). And because it was satisfied that LoanCare ’ s condu ct in this situation was merely a “simple mistake ” — as opposed to an intentional act — the co urt ruled that the T edericks could not prove intentional vio lations of the at - issue statutory provisions of the Act, thus rendering approp riate an award of summary judgment to LoanCare. We are constrained to d isagree with that assessment. For starters, the Bourne decision actually undercuts the Memo randum Opinion’ s ruling as to the at - issue statutory provisions that are relevant in these circumstances. T he Act provision at issue in the Bourne dispute was W est V irginia Code section 46 A -2- 12 5(d). At the time, that specific provision barred a debt collector from “causing a telephone to ring or engaging any person in telephone conversation rep eatedly or continuously, or at unu sual times or at tim es known to be inconvenient with intent to annoy, abuse, oppress or th reaten any person at the called number.” See 998 F. Supp. 2d at 501 (quoti ng W. V a. Code § 46A -2 - 12 5(d)). In other words, section 46A -2- 12 5(d) expre ssly inc lude d an intent to violate requirement. 13 13 It is worth observing that the Bourne d ecision cannot pr ovide a binding declaration of statutory interpretation under W est V irginia law. There, the district cou rt was in the same position as the district cou rt h ere — i.e., being char ged with construing W est V irginia statutes, in line with the Supreme Court of Appeals of W est V irginia. And here, had the district court applied the W est V irginia high court’ s comm and that the Act must be construed liberally “to pro tect consumers from unfair, illegal and deceptive acts or practices,” see State ex r el. 3M Co. v. Hoke, 852 S.E.2d 799, 809 (W. V a. 2020), it w ould not have read a height ened bur den of proof i nto the at - issue statutory provisions. Instead, the court would have recogn ized that a showing of intent is only required when it is explicitly contemplated by the Act’ s plain text. See Smith, 219 S.E.2d at 365 (recogni zing that “[s]tatutes which relate to the same subject matter should be read and applied together. . . so that th e Legislature’ s in tention can be gathered fro m the whole of the enactments”).

29 Separate from the Bourne decision, th e Memorandum Opi nion’ s relian ce on Rice and Perrin e is even less availin g. T o b e sure, those district court decisions are unpersuasive given the extra - textual language that infects each of them — i.e., that the Act punishes “unscrupulous collection practices,” and not u nintentional violations, such that some level of intent is always required in order for a plain tif f to prove a statutory violation. S ee Perrine, 2018 W L 1 1372226, at *5; Rice, 2015 WL 5443708, at *2. For support, Rice and Perrine rel y on a line from Thomas v. Fir estone T ir e & Rubbe r Co., 266 S. E.2d 905, 909 (W. V a. 1980), for the proposition that the A ct is only triggered by a defendant’ s “unscrupulous collection practices.” Id. But as already discussed supra, suc h ju dicially - created lan guage cannot fashion an intent requ irement or otherwise undermine the “strict liability” scheme that is called for b y the at - issue statutory provisions of th e Act. Lastly, we are unpersuaded by the Memorand um Opinio n’ s resort to W est V irginia common law, for support of the district cou rt’ s determination that the at - issue statutory provisions require proof of an i ntent. As the Attorney General has explaine d in hi s amicus submission to o ur Court, “[b]road, flexib le provisions prohibiting unfair and deceptive practices . . . are the hallmark of State consumer pro tection laws.” See Br. of Amicus State of W. V a. 19 (citation modified). It thus makes little sense to analogize the elements required for relief under the Act — specifically, th e at - issue statutory provisions — to the elements of common law fraud under W est V irginia law. See, e.g., Horton v. Pr of. Bur eau of Collections of Md., Inc., 794 S.E.2d 395, 398 (W. V a. 2016) (observing that analogizing claims under Unfair T rade Practices Act to fraud claims “is prob lematic because the type

30 of conduct that constitutes a violation of the Un fair Trade Practices Act may include a variety of factual scenarios which lack the requ isite elements of a fraud claim”). 14 * * * At bottom, e ven if th e text of the at - issue s tatutory pr ovisions is somehow deemed “ambiguous,” the legislative history of the Act readily supports the conclusion that the at - issue sta tutory provis ions d o not require th at a plaintiff demonstrate th at an alleged violator (i.e., LoanCare) acted w ith intent to violate those provisions. Rather, those provisions are for “strict liability,” and they require no p roof of an intent to violate. To reach a different result wo uld not only undermine the broad remed ial purpose of the Act, and it would put W est V irginia ’s consumers — like the T ederick s — at an extrem e and unfair disadvantage. c. Before turning to LoanCare ’s two proffered alternatives for af firmance of the dis trict court ’ s judgment, one striking and remarkable point warrants d iscussion. LoanCare — which irrefutably had requested the court to apply a n intent requirement to the at - issue statutory provisions underlying Count I — now bald ly argues otherwise, maintaining on appeal that it never before made such an argume nt. S ee Br. of Appellee 7 (accusing the 14 Despite relying on W est V ir ginia common law fraud, the Memoran dum Opini on applied a standard to the at - issue statutory provisions that is more stringen t th an that of common law fraud. One type of common law fraud is “constructive” fraud. And constructive fraud in W est V irginia requires a plaintiff to merely “prove the con sequences of actual fraud,” but not “ a fraudulent intent.” See Horton, 794 S.E.2d at 399. As the Attorney General explains, “[l]ike squares and rectangles, every act of actual fraud by a debt collector against a consumer is likely a violation of the Act,” but “not every violation of the Act has to meet the actual fraud standard.” See Br. of Amicus State of W. V a. 22.

31 T edericks of “fail[ing] to address the issues actually presented by LoanCare ’ s summary judgment motion . . . by arguing that the [Act] do es not require them to prove intent (when no one said it did)”). And as LoanCare ’ s lawy er conceded at the oral ar gu ment, LoanCar e no longer takes a position thereon, nor ar gues whether th e at - issue statutory provisions require a showing o f an in tent to violate in order to prove a viola tion of either statutory provision. See Oral Argument at 20:37 - 51, T ederick v. LoanCar e, LLC, No. 25 - 1315 (Jan. 27, 2026), https://www.ca4.uscourts.gov/OAarchive/mp3/25 - 1315 - 2026 0127.mp3. LoanCare ’ s new p osition is — at t he very be st — perplexing. At worst, it amounts to a disingenuous representation. On the one hand, it i s clear that LoanCare ar gued before the district court that the at - issue statutory p rovisions each require a showing of intent to sustain a cognizable violation thereo f. See T ederick v. LoanCar e, LLC, No. 2:22 - cv - 00394, at 1 (E.D. V a. Nov. 22, 2024), ECF No. 75. As Lo anCare stated to the court therein, [e]ven if [it] had misund erstood payment application requirements and misapplied [the T edericks’ s] paymen ts ... ‘billing disputes’ based on alleged misapplication of mortgage paym ents do not supply the intentional ‘fraudulent, deceptive or misleading representations’ or ‘u nfair or unconscionable means’ to collect a debt that the [Act] requires to find a violation and impose liability. Id. (emph asis added). B ut on the other hand, LoanCare now says that is no long er the case, and that we need not reach the statuto ry interpretation issue on which the court based its Memorand um Opinio n. See, e.g., Br. of Appellee 7; Ora l Argument at 20:37 - 51. Whatever LoanCar e ’ s appellate strategy might be in throwing the well - respected district judge overboard, we will refrain from partak ing. Rather, we are content to decide the law and “ get things right.” See Mor eno v. Bolshom, 151 F.4th 543, 5 58 (4th C ir. 2025);

32 Roberts v. Carter - Y oung, Inc., 131 F.4th 241, 249 n.2 (4th Ci r. 2025) (“It is ou r duty to interpret the law, and p arty presentation principles do n ot override that ultimate d uty.”). And in so doing, we will treat LoanCare ’s appellate position — i.e., that it is neither defending nor taking a positi on on the district court’ s ruling that the at - issue statutory provisions each require a showing of intent in order to prove a violation thereof — as an abandonment of the issue. Specifically, LoanCare — as the appellee — has abandoned its ar gument to th e district court th at the at - issue statutory provisions do, in fact, require a showing of an intent to violate. See, e.g., Mayfield v. Nat’l Ass ’ n f or Stock Car Auto Racing, Inc., 674 F.3d 369, 37 7 (4th Cir. 201 2) (recognizing that “[a] part y ’ s failure to raise or discuss an issue in [its] brief is to be d eemed an abandonment of that issue ”); Mir on escu v. Costner, 480 F.3d 664, 677 n.15 (4t h Cir. 2007) (specifying that “[e]ven appellees waive ar guments b y failing to brief them ”); Sto kes v. Stirling, 64 F.4th 131, 137 - 38 (4th C ir. 2 023). B. Seeking to avoid vacatur of th e Memorandum Opinion and further pro ceedings on remand, LoanCare say s we should affirm the judgment on two alternative grounds: (1) since LoanCare correctly app lied the T edericks’ s prepayments, there was no improper interest char ged on the Loan; or (2) LoanCare is entitled to the protections afforded by the “ bona fide error ” defense, pursuant t o W est V irginia Code section 46A -5- 101(8). LoanCare is correct that a panel of our Court is permitted to “affirm [a district court’ s judgment] on any ground appearing in the record.” S ee Scott v. United States, 328 F.3d 132, 137 (4th Ci r. 2003) (recognizing that court o f appeals may “ af firm on any ground appearing in the record, includ ing theories not relied upon or rejected b y the district court”).

33 In this situation, however, neither of the “alternative ground s” advanced by LoanCare are at all “apparent.” See United States v. Smith, 395 F.3d 516, 5 19 (4th Cir. 2 005); accor d Appar ent, Black’ s Law Dictionary (12th ed. 2024) (defining “apparent” as “obvious”). Accordingly, we will refrain from af firming the district court’ s judgment on such ground s. 1. As to LoanCare ’s first affirmance contention, despite LoanCare ’ s insistence th at it correctly calculated the T edericks’ s interest on the Loan, that issue is no t at all clear. Indeed, the district court specifically recognized th at LoanCare may have m isapplied the T edericks’ s pre payments and collected interest that was not oth erwise owed on the Loa n. As explained i n the Memorandum Opini on, “ LoanCare may have misapplied the [p] repayments resulting in LoanCare receiving unearned interest.” See Memorandum Opinion 1 0 - 1 1 (emphasis added). Pu t differe ntly, the court disav owed ruling on whether LoanCare correctly calculated in terest on the Loan. Given that we are a “ court of rev iew, not of first view,” see Cu tter v. W ilkinson, 544 U.S. 709, 71 8 n.7 (2005) — a nd because the result of the interest - calculation assertion is not at all “app arent,” see Sm ith, 395 F.3d at 519 — we decline to affirm on that basis, and thus leave that issue for the remand.

34 2. Second, LoanCare contends th at we could affirm the judgmen t because LoanCare is entitled to the protections of the “bo na fide error defense ” from liability, as p rovided by W est V irginia Code section 46A -5- 101(8). 15 We likewise declin e to af firm on that basis. For starters, we observe that LoanCare did not even move for summary judgment on that ground, raising the issue on ly in its reply brief in the underlying proceedings in the district court. Generally, w e do not consider such tardily - interposed arguments on appeal. See, e.g., P atrick v. Bur eau of Alcohol, T obacco, Fir earms & Explosives, 860 Fed. App’x 828, 833 (4th C ir. 2 021) (referencing favorably Sixth Circuit and Ninth Circuit decisions for proposition that “arguments raised for the first time in a party ’ s reply b rief gen erally are insufficient for consideration by the district court and are not rev iewable on appeal”). Separate and apart from that waiver issue, it is not at all clear that LoanCare would prevail — at the summary judgme nt stage — on such a n af firmative defense. And contrary to LoanCare ’s dubious suggestion that “the district court’ s opinion is unclear as to whether it reached th[is] affirmative defense” at the summary judgment stage, see Br. of Appellee 15 W est V irginia Code section 46A -5- 101(8) pr ovides for the “ bona fide error defense,” and that provision of the Act states, in relevant part, as follows: If the creditor or debt collector est ablishes by a preponderance of evidence that a violation is unintentional or the result of a bona fide error of fact n otwithstanding the maintenance of pr ocedur es r easonabl y adapte d to avoi d any such v iolati on or e r ro r, no liability is imposed under subsections (1), (2) and (4) of this section and the validity of the transaction is not affected. See W. V a. Code § 46A -5- 101(8) (emphasis added).

35 59, the court declined to resolve that issue, given that it was not ad dress ed in the Memorand um Opini on. Ever mindful of the fact that we are a “court o f review, not of first view,” see Cutter, 544 U.S. at 718 n.7, we will also d ecline to affirm on this alte rnative basis as wel l. Instead, we w ill leave the issue for a resolution in the remand proceedings. I V. Pursuant to the foregoing, we vacate the judgmen t of the district court and remand for such other and further p roceedings as may be appropriate. V ACA TED AND REMANDED