Cavalry SPV I, LLC v. Patrick Morrisey, Attorney General, etc.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2013 Term
FILED
November 13, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 11-1564 SUPREME COURT OF APPEALS
OF WEST VIRGINIA

CAVALRY SPV I, LLC; CAVALRY SPV II, LLC;

CAVALRY INVESTMENTS, LLC; AND

CAVALRY PORTFOLIO SERVICES, LLC,

Defendants Below, Petitioners

V.

PATRICK MORRISEY,

ATTORNEY GENERAL,

Plaintiff Below, Respondent

Appeal from the Circuit Court of Kanawha County

Honorable James C. Stucky, Judge

Civil Action No. 10-C-994

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

AND

No. 12-0546

CAVALRY SPV I, LLC; CAVALRY SPV II, LLC;

 CAVALRY INVESTMENTS, LLC; AND

CAVALRY PORTFOLIO SERVICES, LLC,

Defendants Below, Petitioners

V.

PATRICK MORRISEY,

ATTORNEY GENERAL,

Plaintiff Below, Respondent

Appeal from the Circuit Court of Kanawha County

Honorable James C. Stucky, Judge

Civil Action No. 10-C-994

AFFIRMED

Submitted: October 1, 2013

Filed: November 13, 2013

Don C.A. Parker Patrick Morrisey
Bruce M. Jacobs Attorney General
Spilman Thomas & Battle, PLLC Elbert Lin
Charleston, West Virginia Solicitor General
Attorneys for the Petitioners Norman Googel
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent

JUSTICE DAVIS delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. The Attorney General’s investigatory powers include the power to issue

investigative subpoenas pursuant to W. Va. Code § 46A-7-104 (1974) (Repl. Vol. 2006).

2. When the Attorney General files a cause of action against a person or

entity that is subject to an investigative subpoena, the Attorney General’s subpoena authority

ends as to those matters that form the basis of the complaint’s allegations, and the rules of

discovery applicable to civil proceedings generally provide the method by which the Attorney

General may continue to investigate the alleged wrongdoing. However, an investigative

subpoena survives the Attorney General’s filing of a lawsuit when the subpoena, in whole

or in part, pertains to matters that do not form the basis of the subject complaint.

3. Once the Attorney General has instituted a civil action against a person

or entity to enjoin unlawful conduct, the Attorney General may also seek temporary relief

against the person or entity during the pendency of such proceedings in accordance with

W. Va. Code § 46A-7-110 (1974) (Repl. Vol. 2006).

i
Davis, Justice:

The petitioners herein and defendants below, Cavalry SPV I, LLC (“SPV I”);

Cavalry SPV II, LLC (“SPV II”); Cavalry Investments, LLC (“CI”); and Cavalry Portfolio

Services, LLC (“CPS”)1 appeal from two orders entered by the Circuit Court of Kanawha

County pertaining to the enforcement of an investigative subpoena issued against them by

the respondent herein and plaintiff below, the Attorney General of West Virginia, Patrick

Morrisey2 (“Attorney General”). This Court consolidated the two appeals for purposes of

“argument, consideration[,] and decision” by orders entered April 24, 2013.

In Case Number 11-1564, the Petitioners appeal from an order entered October

7, 2011, by the Circuit Court of Kanawha County. By that order, the circuit court denied the

Petitioners’ motion to dismiss the investigative subpoena; granted the Attorney General’s

motion for a temporary injunction enjoining the Petitioners from collecting debts they had

acquired before they were licensed in West Virginia to do so; compelled the Petitioners to

comply with the investigative subpoena; and ordered the Petitioners to send a letter to

affected consumers. On appeal to this Court, the Petitioners challenge the validity and

1
Where context permits, the named petitioners will be referred to collectively
as “the Petitioners.”
2
While this case was pending before the Court, Patrick Morrisey was sworn
into office as Attorney General for the State of West Virginia, replacing former Attorney
General Darrell V. McGraw, Jr. See W. Va. R. App. Proc. 41(c) (explaining procedure for
substitution of parties who hold public office).

1

enforceability of the Attorney General’s investigative subpoena. Upon a review of the

parties’ arguments, the appendix record submitted for appellate consideration, and the

pertinent authorities, we affirm, in part, and reverse, in part, the circuit court’s October 7,

2011, order. In summary, we find that the Attorney General’s investigatory powers include

the power to issue investigative subpoenas pursuant to W. Va. Code § 46A-7-104 (1974)

(Repl. Vol. 2006) and that the subject investigative subpoena was validly issued in the case

sub judice in accordance with the Attorney General’s statutory authority to conduct

investigations. We further conclude that when the Attorney General files a cause of action

against a person or entity that is subject to an investigative subpoena, the Attorney General’s

subpoena authority ends as to those matters that form the basis of the complaint’s allegations,

and the rules of discovery applicable to civil proceedings generally provide the method by

which the Attorney General may continue to investigate the alleged wrongdoing. However,

an investigative subpoena survives the Attorney General’s filing of a lawsuit when the

subpoena, in whole or in part, pertains to matters that do not form the basis of the subject

complaint. Therefore, the Attorney General’s investigative subpoena in the case sub judice

is enforceable as to matters that are not encompassed by the Attorney General’s pending civil

action against the Petitioners. Accordingly, we reverse that portion of the circuit court’s

order that enforced the entirety of the Attorney General’s investigative subpoena prior to

determining whether any of the matters of inquiry addressed therein are now subject to civil

discovery in the pending enforcement proceedings and remand this case to the circuit court

2

to conduct such an analysis. We affirm the remainder of the circuit court’s rulings

preliminarily upholding the Attorney General’s investigative subpoena.

In Case Number 12-0546, the Petitioners appeal from an order entered March

20, 2012, by the Circuit Court of Kanawha County. By that order, the circuit court denied

the Petitioners’ motion to dissolve or modify the aforementioned temporary injunction;

refused the Attorney General’s motion for stay of discovery pending the Petitioners’

compliance with the Attorney General’s investigative subpoena; deemed that portion of the

court’s October 7, 2011, order requiring the Petitioners to comply with the Attorney

General’s investigative subpoena to be a final and appealable order; and provided language

to be included in the Petitioners’ letter to affected consumers. On appeal to this Court, the

Petitioners contest the circuit court’s decision to uphold its imposition of a temporary

injunction. Upon a review of the parties’ arguments, the appendix record submitted for

appellate consideration, and the pertinent authorities, we affirm the circuit court’s March 20,

2012, order. In summary, we find that once the Attorney General has instituted a civil action

against a person or entity to enjoin unlawful conduct, the Attorney General may also seek

temporary relief against the person or entity during the pendency of such proceedings in

accordance with W. Va. Code § 46A-7-110 (1974) (Repl. Vol. 2006). We further conclude

that the temporary injunction imposed upon the Petitioners herein was properly issued in

compliance with this Court’s prior holding in Syllabus point 2 of State ex rel. McGraw v.

3

Imperial Marketing, 196 W. Va. 346, 472 S.E.2d 792 (1996).3

I.

FACTUAL AND PROCEDURAL HISTORY

The facts giving rise to the instant controversies are not generally disputed by

the parties. All of the Petitioners herein are engaged in various aspects of the collection of

consumer debts, which include purchasing charged-off debts that are deemed to be

uncollectible by the original creditors and attempting to collect these debts from consumer

debtors.4 The subject investigation originated when the Consumer Protection Division of the

Attorney General’s Office received information and approximately sixteen complaints from

affected consumers indicating that certain5 of the Petitioners had engaged in conduct in

violation of the consumer protection laws of this State.6 Based upon this information, as well

as the Attorney General’s desire to determine whether the alleged violations of the West

Virginia Consumer Credit and Protection Act had been committed, and, if so, to prevent

3
See Section III.B.2., infra, for the full text of Syllabus point 2 of State ex rel.
McGraw v. Imperial Marketing, 196 W. Va. 346, 472 S.E.2d 792 (1996).
4
In their brief in Case Number 11-1564, the Petitioners describe their individual
roles in this debt collection process as follows: “SPV I and SPV II were purchasers and
holders of credit card debt”; CI “is a purchaser and holder of different types of obligations,
including credit card debt”; and “CPS is a collection agency[.]”
5
See note 10, infra.
6
For further discussion of the nature of the alleged violations, see Section
III.A.3., infra.

4

further violations thereof, the Attorney General issued the subject investigative subpoena on

January 25, 2010. Although all four Petitioners were referenced within the body of the

investigative subpoena, only “CAVALRY SPV I, LLC and CAVALRY SPV II, LLC” were

named in the style of the subpoena and in the accompanying letter detailing the

“Investigation of Cavalry SPV I and II.”7 The Petitioners filed numerous objections in

response to the Attorney General’s investigative subpoena. At this juncture, the parties differ

as to whether the named Petitioners provided information requested by the investigative

subpoena; however, it is clear that any such compliance did not respond completely to the

subpoena’s demands.

Thereafter, on June 3, 2010, the Attorney General filed a civil action in the

Circuit Court of Kanawha County against all four Petitioners (1) seeking an order compelling

the named Petitioners to comply with the investigative subpoena and (2) alleging violations

of the West Virginia Consumer Credit and Protection Act, W. Va. Code § 46A-1-101 et seq.

See generally W. Va. Code § 46A-7-108 (1974) (Repl. Vol. 2006) (authorizing Attorney

General to bring action to enjoin violations of chapter); W. Va. Code § 46A-7-111 (1999)

(Repl. Vol. 2006) (permitting Attorney General to bring civil actions against creditors). As

to the alleged statutory violations, the Attorney General also sought temporary relief pursuant

to W. Va. Code § 46A-7-110 (1974) (Repl. Vol. 2006) to enjoin the Petitioners from

7
See infra notes 8 & 10.

5

continuing their alleged misconduct during the pendency of the enforcement proceedings.

The Petitioners moved to dismiss the Attorney General’s complaint.

By order entered October 7, 2011, which order forms the basis of Case Number

11-1564 in this Court, the circuit court denied the Petitioners’ motion to dismiss the

complaint and granted the Attorney General’s request for temporary relief. In pertinent part,

the court ruled:

The Attorney General’s motion for temporary injunction
against the LLC Defendants should be, and it hereby is,
GRANTED against SPV I, SPV II, and Calvary [sic]
Investments, but not CPS.[8]

The Defendants SPV I, SPV II, and Calvary [sic]
Investments should be, and they hereby are, ENJOINED from
engaging in any actions to collect debts acquired prior to the
date that they became licensed, including but not limited to, (i)
collecting or continuing to collect payments arising from oral or
written agreements; (ii) prosecuting or continuing to prosecute
pending collection suits; (iii) collecting or continuing to collect
payments arising from judgments already entered in lawsuits;
and (iv) placing or continuing to place liens or attachments on
personal or real property, including garnishment of wages,
arising from judgments already entered in lawsuits. In addition,
SPV I, SPV II, and Calvary [sic] Investments are hereby
ORDERED to release all garnishments of wages and liens or

8
The circuit court found that three of the Petitioners did not become licensed
and bonded with the West Virginia State Tax Department to collect debts until after the
Attorney General had filed his complaint against them: SPV I (October 13, 2010), SPV II
(October 12, 2010), and CI (October 7, 2010). By contrast, the court found that “CPS was
licensed and bonded with the State Tax Department to collect debts at all relevant times in
question.”

6

 attachments filed against real or personal property prior to the
time that they became licensed to collect debts in West Virginia.

Notwithstanding all of the foregoing, SPV I, SPV II, and
Calvary [sic] Investments may receive or continue to receive
payments made voluntarily by consumers to them without
solicitation or effort on their part. Provided, however, all such
money received shall be placed in an escrow account and the
LLC Defendants shall make appropriate periodic reports
accounting for such funds to the Attorney General.

The Attorney General’s request for an Order compelling
the LLC Defendants to comply with his investigative subpoena
should be, and it hereby is, GRANTED.

(Footnote added). Finally, the order directed the Petitioners to send a letter to all affected

consumers

informing them of the existence of this Order so that they may
decide whether to voluntarily continue to make payments to
these entities as a result of any judgments, settlement
agreements, or other collection activities initiated prior to the
time that they became licensed to collect debts in West Virginia.

From this order, the Petitioners appeal to this Court in Case Number 11-1564.

Following the circuit court’s order restraining the Petitioners’ debt collection

activities through its imposition of a temporary injunction, the Petitioners moved to dissolve

or otherwise modify the terms of the temporary injunction. By order entered March 20, 2012,

which order forms the basis of Case Number 12-0546 in this Court, the circuit court denied

the Petitioners’ motion to dissolve or modify the temporary injunction. In rendering its

ruling, the circuit court also declared final that portion of its earlier order compelling the

7

Petitioners to comply with the Attorney General’s investigative subpoena so as to permit the

Petitioners to file an appeal therefrom. The court further clarified the language to be

included in the aforementioned letter to affected consumers. In addition, the circuit court

denied the Attorney General’s request to stay discovery pending the Petitioners’ compliance

with the investigative subpoena thereby allowing discovery to proceed in the underlying civil

action. Finally, with regard to the Petitioners’ subpoena compliance, the court recognized

that,

[i]nasmuch as the parties have advised the Court that they
may have reached a tentative agreement to resolve their dispute
concerning compliance with the subpoena, the parties’
respective motions pertaining to compliance with the subpoena
will be held in abeyance to afford the parties an opportunity to
finalize and perform the Agreement or to request further
assistance from the Court.

From this order, the Petitioners appeal to this Court in Case Number 12-0546.9

9
After the circuit court rendered these rulings, it appears that the Attorney
General has continued to seek the Petitioners’ compliance with the terms of the investigative
subpoena. In this regard, the Attorney General has filed a “Petition for Contempt” against
the Petitioners on May 30, 2012, and an “Amended Petition for Contempt” against the
Petitioners on July 5, 2012. Insofar as no corresponding orders of the circuit court holding
the Petitioners in contempt, or failing to hold the Petitioners in contempt, for their alleged
failure to comply with the Attorney General’s investigative subpoena have been appealed
from herein, we need not consider these continuing proceedings in deciding the cases sub
judice.

8

 II.

STANDARD OF REVIEW

Given that our consideration of the assigned errors is governed by specific

standards of review applicable to each issue, we will set forth the corresponding standards

in our discussion thereof.

III.

DISCUSSION

Because each of the instant appeals raises distinct issues, we will consider each

case separately.

A. Case Number 11-1564

In Case Number 11-1564, the Petitioners contend that the circuit court erred

by (1) determining that the Attorney General’s investigative subpoena is valid despite the

Attorney General’s failure to hold an administrative hearing prior to its issuance, the lack of

probable cause to support the subpoena, and the subpoena’s inclusion of unauthorized

interrogatories and (2) enforcing the investigative subpoena after the Attorney General had

filed a lawsuit against the Petitioners.10

10
The Petitioners additionally assigned error to the circuit court’s ruling
whereby it purportedly enforced the Attorney General’s investigative subpoena against all
four of the Petitioners herein, rather than requiring only the two Petitioners actually named
(continued...)

9

 1. Standard of review. At issue in this appeal is the authority of the Attorney

General of West Virginia to issue investigative subpoenas and the correctness of the circuit

court’s order enforcing the same. Insofar as the Attorney General’s investigatory authority

is created and defined by statute, we accord a plenary review to the circuit court’s

interpretation thereof: “Interpreting a statute or an administrative rule or regulation presents

a purely legal question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v.

State Tax Dep’t of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995). Accord Syl. pt.

1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue

on an appeal from the circuit court is clearly a question of law or involving an interpretation

of a statute, we apply a de novo standard of review.”).

Moreover, we apply a three-part standard of review to the circuit court’s order

finding the Attorney General’s investigative subpoena to be valid and enforceable against the

Petitioners:

In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate
disposition under an abuse of discretion standard, and we review

10
(...continued)
in the style of the subpoena to comply with its terms. Counsel for the Attorney General
represented during the oral argument of this case before this Court that the subpoena would
be enforced only against those Petitioners who are specifically named in the style of the
investigative subpoena. Because the Attorney General’s concession resolves this assignment
of error, we need not consider it further.

10

 the circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to de novo
review.

Syl. pt. 2, Walker v. West Virginia Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).

Our consideration of the Petitioners’ assignments of error will be guided by these standards.

2. Investigatory power of the Attorney General. Although the Petitioners

contend that the circuit court erred in enforcing the subject investigative subpoena, certain

of their contentions are more appropriately considered in the context of the scope of the

Attorney General’s statutory authority to conduct investigations in the first instance.

Specifically, whether the Attorney General was required to hold an administrative hearing

before issuing the subject subpoena and whether the Attorney General could request

information by interrogatory may be determined by examining the Legislature’s definition

of the Attorney General’s investigatory authority.

At the outset, we note that “[t]he powers and duties of the Attorney General

are specified by the constitution and by rules of law prescribed pursuant thereto.” Syl. pt. 1,

Manchin v. Browning, 170 W. Va. 779, 296 S.E.2d 909 (1982), overruled on other grounds

by State ex rel. Discover Fin. Servs., Inc. v. Nibert, 231 W. Va. 227, 744 S.E.2d 625 (2013).11

11
In Syllabus point 3, in part, of State ex rel. Discover Financial Services, Inc.
v. Nibert, 231 W. Va. 227, 744 S.E.2d 625 (2013), we recognized that the Attorney General
(continued...)

11

Stated otherwise, “the Attorney General[’s] . . . power . . . is conferred by law through statute

and the Constitution.” State ex rel. Fahlgren Martin, Inc. v. McGraw, 190 W. Va. 306, 312,

438 S.E.2d 338, 344 (1993). In the case sub judice, the Attorney General derives his power

to investigate possible violations of the West Virginia Consumer Credit and Protection Act

from W. Va. Code § 46A-7-104 (1974) (Repl. Vol. 2006), which provides, in pertinent part:

(1) If the attorney general has probable cause to believe
that a person has engaged in an act which is subject to action by
the attorney general, he may, and shall upon request of the
commissioner, make an investigation to determine if the act has
been committed and, to the extent necessary for this purpose,
may administer oaths or affirmations, and, upon his own motion
or upon request of any party, may subpoena witnesses, compel
their attendance, adduce evidence, and require the production of
any matter which is relevant to the investigation, including the
existence, description, nature, custody, condition and location of
any books, records, documents or other tangible things and the
identity and location of persons having knowledge of relevant
facts, or any other matter reasonably calculated to lead to the
discovery of admissible evidence.

....

(3) Upon failure of a person without lawful excuse to
obey a subpoena or to give testimony and upon reasonable
notice to all persons affected thereby, the attorney general may
apply to the circuit court of the county in which the hearing is to
be held for an order compelling compliance.

To ascertain whether a hearing is a necessary prerequisite to the issuance of an investigative

11
(...continued)
“retains inherent common law powers, when not expressly restricted or limited by statute.”
Insofar as the authority of the Attorney General in the case sub judice is derived from the
governing statutes, we need not consider the extent of his common law authority.

12

subpoena and whether the Attorney General has the authority to request information by

interrogatory, we must examine the governing statutory language.

The first step of statutory construction requires an examination of the

Legislature’s intent in enacting the subject statute: “[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). “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). Accord Syl. pt. 2, State v. Epperly,

135 W. Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision 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.”). In other words, “[w]here the language of a statute

is clear and without ambiguity the plain meaning is to be accepted without resorting to the

rules of interpretation.” Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).

Accord Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W. Va. 573, 587,

466 S.E.2d 424, 438 (1995) (“We look first to the statute’s language. If the text, given its

plain meaning, answers the interpretive question, the language must prevail and further

inquiry is foreclosed.”).

13

 Applying these rules of statutory construction to the subject legislative

provision, we find the language of W. Va. Code § 46A-7-104 to be plain and unambiguous

in its intention to permit the Attorney General to issue an investigative subpoena.

Accordingly, we hold that the Attorney General’s investigatory powers include the power to

issue investigative subpoenas pursuant to W. Va. Code § 46A-7-104 (1974) (Repl. Vol.

2006). Considering the questions posed by the Petitioners, we further conclude that the plain

language of W. Va. Code § 46A-7-104 definitively answers and dispenses with both the

Petitioners’ contention that an administrative hearing is a necessary prerequisite to the

Attorney General’s issuance of an investigative subpoena and the Petitioners’ assertion that

interrogatories are not included within the scope of the Attorney General’s investigatory

authority.

In their arguments before this Court, the Petitioners contend that W. Va. Code

§ 46A-7-104(1) requires the Attorney General to hold an administrative hearing prior to the

issuance of an investigative subpoena. We disagree. The language of this provision does not

impose upon the Attorney General an obligation to hold an administrative hearing incident

to the issuance of an investigative subpoena. In fact, the word “hearing” does not appear

anywhere in the language of W. Va. Code § 46A-7-104(1). While it is plausible to read the

statute as contemplating that a hearing may be held at some point in time to facilitate certain

processes related to the subpoena’s execution, e.g., the administration of oaths or

14

affirmations and the compulsory attendance of witnesses, W. Va. Code § 46A-7-104(1)

simply does not require the Attorney General to hold a hearing as a prerequisite to the

issuance of an investigative subpoena.

“‘Courts must presume that a legislature says in a statute what it means and

means in a statute what it says there.’” Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va.

297, 312, 465 S.E.2d 399, 414 (1995) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S.

249, 253-54, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391 (1992)). Moreover, “[i]t is not for this

Court arbitrarily to read into [a statute] that which it does not say. Just as courts are not to

eliminate through judicial interpretation words that were purposely included, we are obliged

not to add to statutes something the Legislature purposely omitted.” Banker v. Banker, 196

W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (citations omitted).

We are confident that if the Legislature had intended to establish a precise and

definite requirement that a hearing be held prior to the issuance of an investigative subpoena,

the Legislature would have clearly stated the necessity of such a procedure as it did when it

explained the process for the Attorney General to seek a party’s compliance with an

investigative subpoena. In this regard, the Legislature specifically has stated in W. Va. Code

§ 46A-7-104(3) that,

[u]pon failure of a person without lawful excuse to obey
a subpoena or to give testimony and upon reasonable notice to

15

 all persons affected thereby, the attorney general may apply to
the circuit court of the county in which the hearing is to be held
for an order compelling compliance.

(Emphasis added). This statutory language plainly directs that a hearing is required before

an order compelling compliance with an investigative subpoena may be issued. This

language does not, however, address the need for a hearing to issue an investigative subpoena

in the first instance. Therefore, we conclude that the Attorney General is not required to hold

an administrative hearing prior to the issuance of an investigative subpoena pursuant to

W. Va. Code § 46A-7-104.

Likewise, we reject the Petitioners’ contention that the Attorney General’s

investigatory authority does not encompass the use of interrogatories. The plain language

of W. Va. Code § 46A-7-104(1) permits the Attorney General to issue an investigative

subpoena that

require[s] the production of any matter which is relevant to the
investigation, including the existence, description, nature,
custody, condition and location of any books, records,
documents or other tangible things and the identity and location
of persons having knowledge of relevant facts, or any other
matter reasonably calculated to lead to the discovery of
admissible evidence.

Given that the investigative subpoena can request a party to provide specific information,

e.g., through description, identity, and location details, it stands to reason that the Attorney

General’s investigatory authority contemplates the use of questionnaires, or interrogatories,

16

to specify the type of information sought through the subpoena. The use of interrogatories

in this manner also benefits the party subject to the subpoena by directing his/her attention

to the specific type of information sought by the subpoena. By focusing upon the precise

information sought, the interrogatories also instruct the subject party as to what information

he/she should provide to comply with the subpoena’s terms. Therefore, we find that the

Attorney General did not exceed his investigatory authority by issuing interrogatories in

conjunction with the investigative subpoena issued to the Petitioners in this case.

3. Validity and enforceability of investigative subpoena. We next turn to

the Petitioners’ contentions that the investigative subpoena issued in this case was neither

valid nor enforceable. Whether an investigative subpoena is valid and enforceable is an

interrelated inquiry insofar as a judicial tribunal cannot enforce an investigative subpoena

that is not valid in the first instance. In the case sub judice, the Petitioners contend that the

Attorney General’s investigative subpoena was not valid because no probable cause existed

to support its issuance. Furthermore, the Petitioners argue that the circuit court erred by

enforcing the Attorney General’s investigative subpoena after the Attorney General had filed

the instant lawsuit against them.

Pursuant to W. Va. Code § 46A-7-104(1), the existence of probable cause is

a necessary prerequisite to the issuance of an investigative subpoena: “[i]f the attorney

17

general has probable cause to believe that a person has engaged in an act which is subject

to action by the attorney general, he may . . . make an investigation to determine if the act

has been committed[.]”12 (Emphasis added). Probable cause to support the issuance of

“an investigative subpoena . . . exists when facts and
circumstances . . . would warrant an honest belief in the mind of
a reasonable and prudent person that an offense has been, or is
being, committed and that . . . information relative to the
commission of that offense is in the possession of the person or
institution to whom the subpoena is directed.”

State v. Fregien, 331 Mont. 18, 20-21, 127 P.3d 1048, 1050 (2006) (quoting State v. Nelson,

283 Mont. 231, 243-44, 941 P.2d 441, 449 (1997) (additional citation omitted)). Accord

State v. Bilant, 307 Mont. 113, 121, 36 P.3d 883, 888 (2001) (finding probable cause for the

issuance of an investigative subpoena to exist when there are “sufficient facts to support a

determination that there is a probability of criminal activity” (citation omitted)). See also

People v. Mason, 989 P.2d 757, 761 (Colo. 1999) (holding that “probable cause for a

subpoena . . . requires a reasonable likelihood that the evidence sought exists and that there

is a nexus between the [person to whom, or entity to which, the subpoena is directed] and the

[alleged] crime”). Cf. Syl. pt. 4, Feathers v. West Virginia Bd. of Med., 211 W. Va. 96, 562

12
One other state also has promulgated a similar statute requiring the existence
of probable cause to support the issuance of an investigative subpoena to determine whether
the state’s consumer protection laws have been, or are being, violated. See Wyo. Stat. Ann.
§ 40-12-112(a) (West 2000) (“If, by inquiry the enforcing authority or as a result of
complaints, the enforcing authority has probable cause to believe that a person has engaged
in, or is engaging in, an act or practice that violates this act [Wyoming Consumer Protection
Act], investigators designated by the Wyoming attorney general may administer oaths and
affirmations, subpoena witnesses or matter, and collect evidence.”).

18

S.E.2d 488 (2001) (“A finding that probable cause exists to substantiate a complaint made

under the Medical Practice Act is not a necessary prerequisite for the Board of Medicine to

issue a subpoena or subpoena duces tecum under W. Va. Code, 30-3-7(a)(2) [1980].”).13

Under the facts of the case sub judice, we find that the Attorney General amply

demonstrated probable cause to believe that the Petitioners had violated, or were violating,

the provisions of the West Virginia Consumer Credit and Protection Act, W. Va. Code

§ 46A-1-101 et seq., and that the Petitioners possessed information relevant to such inquiry.

13
It is important to note that the probable cause prerequisite to the issuance of
the Attorney General’s investigative subpoena in this case is established by W. Va. Code
§ 46A-7-104(1), which specifically requires the existence of “probable cause.” By contrast,
investigatory subpoenas issued by federal administrative agencies, and some state
administrative agencies, do not require the existence of probable cause. See, e.g., Becker v.
Kroll, 494 F.3d 904, 916 (10th Cir. 2007) (“Under Fourth Amendment law, an investigatory
. . . subpoena is not subject to . . . probable cause requirements[.]” (citing See v. City of
Seattle, 387 U.S. 541, 544, 87 S. Ct. 1737, 1740, 18 L. Ed. 2d 943 (1967))); Hartford Cnty.
Sheriffs Dep’t Cmtys. Charities Ass’n v. Blumenthal, 47 Conn. Supp. 447, 463, 806 A.2d
1158, 1171 (2001) (“The protections of a finding of probable cause, supported by oath or
affirmation, simply do not apply in the context of an . . . investigatory subpoena.” (citing
Oklahoma Press Publ’g Co. v. Walling, 327 U.S. 186, 208-09, 66 S. Ct. 494, 505-06, 90
L. Ed. 614 (1946))); Francis v. Accardo, 602 So. 2d 1066, 1069 (La. Ct. App. 1992)
(“[A]dministrative agencies need no probable cause to exercise their investigative powers[.]”
(citation omitted)); In re Suffolk Cnty. Ethics Comm’n, 909 N.Y.S.2d 339, 342, 29 Misc. 3d
1136, 1139 (N.Y. Sup. Ct. 2010) (“[T]he factual basis required to sustain an investigative
subpoena issued by a government agency need only be preliminary in nature as the agency
is not required to demonstrate . . . probable cause that wrong doing has occurred or will be
disclosed[.]” (citations omitted)). Because the governing statute herein expressly requires
the existence of probable cause as a necessary prerequisite to the Attorney General’s issuance
of an investigative subpoena, we find the above-referenced authorities neither persuasive nor
instructive to our analysis.

19

Prior to his issuance of the investigative subpoena in January 2010, the Attorney General had

received several complaints and other information indicating that certain14 of the Petitioners

were collecting consumer debts without a license15 or a surety bond16 and suggesting that they

may have engaged in, or may be engaging in, other improper debt collection practices.17

Thus, prior to issuing the subject investigative subpoena, the Attorney General had “an

honest belief . . . that an offense had been, or is being, committed”18 and possessed sufficient

information to specifically identify the various statutes that potentially had been violated.

Moreover, the Attorney General directed the investigative subpoena to those Petitioners

believed to possess “information relative to the commission of that offense.”19 Contrary to

the Petitioners’ assertions, the Attorney General was not required to possess concrete proof

of the specific alleged wrongdoing or to describe in detail the nature of the potentially

14
See notes 8 & 10, supra.
15
See W. Va. Code § 47-16-4(a) (1973) (Repl. Vol. 2006) (requiring collection
agency to possess license).
16
See W. Va. Code § 47-16-4(b) (1973) (Repl. Vol. 2006) (requiring collection
agency to file surety bond).
17
These other improper debt collection actions, which, if substantiated,
constitute violations of the West Virginia Consumer Credit and Protection Act, include
collecting debts for unlicensed debt purchasers (W. Va. Code § 46A-2-127(e) (1997) (Repl.
Vol. 2006)); repeatedly contacting consumers who do not owe a debt (W. Va. Code § 46A-2­
127(d) (1997) (Repl. Vol. 2006) and W. Va. Code § 46A-2-128(d) (1990) (Repl. Vol. 2006));
and harassing consumers by telephone (W. Va. Code § 46A-2-125 (1974) (Repl. Vol. 2006)).
18
Fregien, 331 Mont. at 21, 127 P.3d at 1050 (internal quotations and citation
omitted).
19
Id.

20

nefarious misconduct at the time he issued his investigative subpoena. Rather, the purpose

of an investigative subpoena is precisely as its name implies: to investigate. Such an

investigation is designed to ascertain whether a violation of the Act has, in fact, occurred20

so as to permit the filing of an enforcement proceeding against the alleged offender. In short,

“[t]he investigatory power of the Attorney General . . . authoriz[es the Attorney General] to

investigate prior to making any charges of a violation of the law.” State ex rel. Palumbo v.

Graley’s Body Shop, Inc., 188 W. Va. 501, 505 n.2, 425 S.E.2d 177, 181 n.2 (1992). The

United States Supreme Court has summarized such investigatory authority as

the power to get information from those who best can give it and
who are most interested in not doing so. . . . [A]n administrative
agency charged with seeing that the laws are enforced may . . .
have and exercise powers of original inquiry. It has a power of
inquisition . . . [and] can investigate merely on suspicion[21] that
the law is being violated, or even just because it wants assurance
that it is not.

United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S. Ct. 357, 363-64, 94 L. Ed. 401

(1950) (footnote added).

Probable cause for the issuance of an investigative subpoena, then, does not

anticipate information of sufficient detail as would permit the successful prosecution of an

20
See W. Va. Code § 46A-7-104(1).
21
See supra note 13 discussing differences between probable cause standard
applicable to investigative subpoenas issued by the Attorney General in this State and lesser
standard applicable to administrative subpoenas issued by federal, and some state, agencies.

21

enforcement proceeding. Rather, the Attorney General’s investigative subpoena is designed

to be issued when probable cause exists to believe a violation of the consumer protection

laws of this State has occurred and serves to facilitate the Attorney General’s investigation

of such alleged wrongdoing by producing information that would support the filing of an

enforcement action against the alleged violator. Under the facts of the case sub judice, we

find that the Attorney General had probable cause to issue the subject investigatory subpoena

and that the circuit court properly upheld the investigatory subpoena as valid.

We next consider whether the circuit court properly enforced the Attorney

General’s investigative subpoena. Pursuant to W. Va. Code § 46A-7-104, the Attorney

General is authorized to seek an order compelling compliance with an investigative

subpoena: “[u]pon failure of a person without lawful excuse to obey a subpoena . . . and upon

reasonable notice to all persons affected thereby, the attorney general may apply to the circuit

court of the county in which the hearing is to be held for an order compelling compliance.”

W. Va. Code § 46A-7-104(3). Whether a court should enforce an administrative subpoena

is governed by satisfaction of the criteria we enumerated in Syllabus point 1 of State ex rel.

Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996):

In order to obtain judicial backing for the enforcement of
an administrative subpoena, the agency must prove that (1) the
subpoena is issued for a legislatively authorized purpose, (2) the
information sought is relevant to the authorized purpose, (3) the
information sought is not already within the agency’s
possession, (4) the information sought is adequately described,

22

 and (5) proper procedures have been employed in issuing the
subpoena. If these requirements are satisfied, the subpoena is
presumably valid and the burden shifts to those opposing the
subpoena to demonstrate its invalidity. The party seeking to
quash the subpoena must disprove through facts and evidence
the presumed relevance and purpose of the subpoena.

Applying these elements to the facts of the present case, we find that the

Attorney General has satisfied the elements necessary to obtain judicial backing of his

investigative subpoena. Unquestionably, the investigative subpoena was issued for a purpose

specifically authorized by the Legislature, i.e., to investigate alleged violations of the West

Virginia Consumer Credit and Protection Act, and the material sought thereunder was

designed to elicit information as to whether such statutory violations had, in fact, occurred.

Moreover, at the time the Attorney General issued his investigative subpoena, he did not yet

have the information in hand that he sought to obtain regarding the commission of the alleged

violations, and the subpoena, itself, is sufficiently detailed to inform the parties subject

thereto of the type of material that is requested thereunder. Finally, as noted in the preceding

section, the Attorney General properly complied with the mandates of W. Va. Code § 46A-7­

104(1) in issuing the investigative subpoena.

The investigative subpoena being thus “presumably valid” under Hoover, the

Petitioners now bear the burden of proving the subpoena is invalid by challenging its

“presumed relevance and purpose.” Syl. pt. 1, in part, Hoover, 199 W. Va. 12, 483 S.E.2d

23

12. On appeal to this Court, the Petitioners contend that it is improper for the Attorney

General to seek the enforcement of his investigative subpoena after he has filed a civil action

against them alleging they have committed the same misconduct that he sought to investigate

through the subpoena. Had the Attorney General sought to enforce his investigative

subpoena at an earlier juncture, our inquiry likely would end here with a ratification of the

circuit court’s enforcement order. See Citizens’ Aide/Ombudsman v. Grossheim, 498 N.W.2d

405, 407 (Iowa 1993) (noting that “[e]nforcement [of investigative subpoena] is the rule, not

the exception, so long as [test for judicial enforcement thereof] is met” (citations omitted)).

However, because the Attorney General sought to enforce his investigative subpoena in

conjunction with the filing of a civil action against the same parties who were subject to the

subpoena and because, through this civil action, the Attorney General sought to enforce the

same statutory provisions the possible violation of which formed the impetus for the issuance

of his investigative subpoena, we find the Petitioners’ point to be well taken. We thus

believe it is necessary to clarify the extent to which the investigative subpoena may be

enforced in this particular procedural context.

As we noted in the foregoing discussion, “[t]he investigatory power of the

Attorney General . . . authoriz[es the Attorney General] to investigate prior to making any

charges of a violation of the law.” Graley’s Body Shop, 188 W. Va. at 505 n.2, 425 S.E.2d

at 181 n.2 (emphasis added). Once a complaint has been filed formally charging a party with

24

statutory misconduct, however, the Attorney General no longer may rely upon his powers of

investigation to elicit information to establish those specific consumer protection violations

that form the basis of the complaint. Rather, upon the commencement of enforcement

proceedings through the filing of a civil action by the Attorney General, the Attorney

General’s investigatory powers end as to those matters addressed in the complaint and are

supplanted by the rules of discovery applicable to civil proceedings generally.22 This

reciprocal right of discovery in civil actions is described generally as follows:

Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in
the pending action, whether it relates to the claim or defense of
the party seeking discovery or to the claim or defense of any
other party, including the existence, description, nature, custody,
condition and location of any books, documents or other
tangible things and the identity and location of persons having
knowledge of any discoverable matter. It is not ground for
objection that the information sought will be inadmissible at the
trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence.

W. Va. R. Civ. P. 26(b)(1). It has been said that

22
We note that prior decisions of this Court involving the West Virginia
Consumer Credit and Protection Act, W. Va. Code § 46A-1-101 et seq., have acknowledged
the availability of discovery in such proceedings. See, e.g., White v. Wyeth, 227 W. Va. 131,
134, 705 S.E.2d 828, 831 (2010) (referencing class certification discovery); Syl. pt. 4, State
ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson, 201 W. Va. 402, 497 S.E.2d 755 (1997)
(holding, in context of consumer protection action, that court may allow discovery as aid to
deciding defendant’s motion to dismiss for lack of personal jurisdiction). But see State ex
rel. McGraw v. Imperial Mktg., 203 W. Va. 203, 209-11, 506 S.E.2d 799, 805-07 (1998) (per
curiam) (upholding disallowance of discovery pursuant to W. Va. R. Civ. P. 56(f) because
extrinsic evidence was not necessary for summary disposition of case).

25

 [t]he overarching purpose of discovery is to clarify and
narrow the issues in litigations, so as to efficiently resolve
disputes. This purpose makes litigation less of a game of
“blindman’s bluff” and more of a contest that seeks a fair and
adequate resolution of a dispute. The discovery rules are
available to any party in a civil action.

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

Virginia Rules of Civil Procedure § 26[2], at 540 (2002) (footnotes omitted).

While both an investigative subpoena and civil discovery are designed to elicit

information to support a claim, an investigative subpoena is not, however, a substitute for

discovery. Simply stated, “[a] subpoena . . . is not a discovery device,”23 “[n]or may a

subpoena be used as a substitute for pretrial discovery.”24 Accord Building Mgmt. Co. Inc.

v. Schwartz, 773 N.Y.S.2d 242, 244, 3 Misc. 3d 351, 353 (N.Y. Civ. Ct. 2004) (admonishing

that “a trial subpoena . . . should [not] be used as a substitute for discovery” (internal

quotation and citations omitted)). See also United States v. Caro, 461 F. Supp. 2d 478, 481

(W.D. Va. 2006) (observing that “subpoena duces tecum cannot substitute for the limited

discovery otherwise permitted in criminal cases” (citations omitted)), aff’d, 597 F.3d 608,

620 (4th Cir. 2010).

23
In re Brussels Leasing Ltd. P’ship v. Henne, 664 N.Y.S.2d 905, 907, 174
Misc. 2d 535, 538 (N.Y. Sup. Ct. 1997).
24
Law Firm of Ravi Batra, P.C. v. Rabinowich, 909 N.Y.S.2d 706, 708, 77
A.D.3d 532, 533 (N.Y. App. Div. 2010) (internal quotations and citation omitted).

26

 That is not to say, however, that the Attorney General’s investigative subpoena

did not survive the filing of his complaint in the case sub judice. Rather, the Attorney

General’s investigative subpoena unquestionably remains valid and enforceable as to those

matters about which his investigation remains pending. See, e.g., In re McVane, 44 F.3d

1127, 1141 (2d Cir. 1995) (“[T]he initiation of civil proceedings does not moot an

administrative subpoena.” (citations omitted)); Resolution Trust Corp. v. Walde, 18 F.3d 943,

950 (D.C. Cir. 1994) (same); Linde Thomson Langworthy Kohn & Van Dyke, P.C. v.

Resolution Trust Corp., 5 F.3d 1508, 1518 (D.C. Cir. 1993) (same); National Labor

Relations Bd. v. Bacchi, No. 04 MC 28 (ARR), 2004 WL 2290736, at *4 (E.D.N.Y. June 16,

2004) (“[I]t is well settled that the commencement of civil proceedings does not terminate

an administrative agency’s investigative authority nor moot its administrative subpoena.”

(citations omitted)); Reich v. Hercules, Inc., 857 F. Supp. 367, 369 (D.N.J. 1994) (“When an

administrative agency issues a subpoena pursuant to broad statutory authorization, a

supervening civil proceeding does not render the subpoena moot.” (citations omitted)); Sutro

Bros. & Co. v. Securities & Exch. Comm’n, 199 F. Supp. 438, 439 (S.D.N.Y. 1961)

(suggesting that administrative agency therein may continue its investigation following the

commencement of public proceedings against alleged violators and recognizing that “such

investigation [may] reveal further evidence for use in the pending proceeding”). See also

Bowles v. Bay of New York Coal & Supply Corp., 152 F.2d 330, 330 (2d Cir. 1945) (“[T]he

rules of civil procedure do not apply to restrict or control administrative subpoenas.”).

27

 Nevertheless, to ensure that an investigative subpoena is not inadvertently used

to obtain information from a defendant, against whom a civil complaint alleging statutory

violations has been filed, when such inquiries should, instead, be made in accordance with

the rules of discovery applicable to civil actions generally, we find it prudent to adopt the

following holdings. Accordingly, we hold that when the Attorney General files a cause of

action against a person or entity that is subject to an investigative subpoena, the Attorney

General’s subpoena authority ends as to those matters that form the basis of the complaint’s

allegations, and the rules of discovery applicable to civil proceedings generally provide the

method by which the Attorney General may continue to investigate the alleged wrongdoing.

However, an investigative subpoena survives the Attorney General’s filing of a lawsuit when

the subpoena, in whole or in part, pertains to matters that do not form the basis of the subject

complaint.25

25
Given the unique procedural posture of the case sub judice, the Attorney
General’s proceeding to enforce his investigative subpoena and his lawsuit to restrain
violations of the consumer protection statutes were included within the confines of a single
complaint. Other courts considering the continued viability of an investigative subpoena
following the commencement of civil proceedings have suggested that the proper method of
challenging the enforceability of the subpoena in associated judicial proceedings is in the
judicial tribunal in which such proceedings are pending rather than in the context of the
subpoena enforcement proceedings. See, e.g., Office of Thrift Supervision, Dep’t of the
Treasury v. Dobbs, 931 F.2d 956, 959 (D.C. Cir. 1991) (“If information is wrongly obtained
through an administrative subpoena and used in a subsequent civil or criminal proceeding,
the subpoenaed party remains free to challenge the use of the information in the appeal from
that proceeding.” (emphasis in original)). See also Linde Thomson Langworthy Kohn & Van
Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1518 n.8 (D.C. Cir. 1993) (commenting
that subpoena enforcement proceeding “is not the proper occasion for challenge to a
(continued...)

28

 Applying these holdings to the instant proceeding, we conclude that the

Attorney General’s investigative subpoena in the case sub judice is enforceable as to matters

that are not encompassed by the Attorney General’s pending civil action against the

Petitioners. Insofar as the circuit court’s order does not distinguish between those areas of

investigation that remain subject to the Attorney General’s investigative subpoena and those

inquiries that relate to the complaint’s allegations against the Petitioners, we reverse the

circuit court’s order enforcing the Attorney General’s investigative subpoena in toto. We

further remand this case to the circuit court for it to determine which portions, if any, of the

investigative subpoena have been supplanted by the civil complaint against the Petitioners,

and, as such, are thus subject to civil discovery in the pending enforcement proceedings.

25
(...continued)
hypothetical future abuse of process [resulting from use of subpoena to circumvent discovery
in civil action]. Questions of suppression should not be considered until such time as the
government seeks to use wrongfully obtained information.” (citations omitted)). While this
authority is informative, we find that the unusual posture of the case sub judice requires more
definitive guidance regarding the manner in which an investigative subpoena may be
enforced in associated judicial proceedings when the subpoena enforcement and the judicial
proceedings are prosecuted simultaneously in a single proceeding.

29

 B. Case Number 12-0546

In Case Number 12-0546, the Petitioners contend that the circuit court erred

by issuing and enforcing the temporary injunction enjoining them from collecting upon debts

they acquired prior to their licensure as debt collectors in the State of West Virginia.

1. Standard of review. At issue in this appeal is the authority of the circuit

court to issue and enforce a temporary injunction restraining the Petitioners from engaging

in further alleged violations of the West Virginia Consumer Credit and Protection Act,

W. Va. Code § 46A-1-101 et seq., during the pendency of the underlying enforcement

proceedings. We previously have held that

[i]n reviewing the exceptions to the findings of fact and
conclusions of law supporting the granting of a temporary or
preliminary injunction, we will apply a three-pronged deferential
standard of review. We review the final order granting the
temporary injunction and the ultimate disposition under an abuse
of discretion standard, West v. National Mines Corp., 168
W. Va. 578, 590, 285 S.E.2d 670, 678 (1981), we review the
circuit court’s underlying factual findings under a clearly
erroneous standard, and we review questions of law de novo.
Syllabus Point 4, Burgess v. Porterfield, 196 W. Va. 178, 469
S.E.2d 114 (1996).

Syl. pt. 1, State ex rel. McGraw v. Imperial Mktg., 196 W. Va. 346, 472 S.E.2d 792 (1996).

Guided by this standard, we proceed to consider the Petitioners’ assignment of error.

30

 2. Validity and enforceability of temporary injunction. Although they

advance several different theories in support of their contentions, the sole error assigned by

the Petitioners in this case concerns the validity and enforceability of the circuit court’s

temporary injunction enjoining them from collecting upon debts they acquired prior to their

licensure in West Virginia as debt collectors. In the proceedings below, the Attorney General

requested temporary relief in his complaint alleging that the Petitioners had violated the

consumer protection laws of this State.

W. Va. Code § 46A-7-110 (1974) (Repl. Vol. 2006) specifically authorizes the

Attorney General to seek temporary relief in conjunction with enforcement proceedings and

provides that,

[w]ith respect to an action brought to enjoin violations of
this chapter or unconscionable agreements or fraudulent or
unconscionable conduct, the attorney general may apply to the
court for appropriate temporary relief against a respondent,
pending final determination of the proceedings. If the court
finds after a hearing held upon notice to the respondent that
there is reasonable cause to believe that the respondent is
engaging in or is likely to engage in conduct sought to be
restrained, it may grant any temporary relief or restraining order
it deems appropriate.

W. Va. Code § 46A-7-110. See also W. Va. Code § 46A-7-108 (1974) (Repl. Vol. 2006)

(permitting Attorney General to “bring a civil action to restrain a person from violating this

chapter”); W. Va. Code § 46A-7-109 (1996) (Repl. Vol. 2006) (authorizing Attorney General

to bring civil action to restrain creditor from engaging in enumerated activities). Construing

31

this provision in accordance with the rules of statutory construction,26 we find the language

employed by the Legislature to be a clear expression of its intent to enable the Attorney

General to prosecute violations of this State’s consumer protection laws. Accordingly, we

hold that once the Attorney General has instituted a civil action against a person or entity to

enjoin unlawful conduct, the Attorney General may also seek temporary relief against the

person or entity during the pendency of such proceedings in accordance with W. Va. Code

§ 46A-7-110 (1974) (Repl. Vol. 2006).

Having established the Attorney General’s authority to seek the subject

temporary injunction, we next must consider whether the circuit court properly issued and

enforced it. We previously have held that

[t]he method of analysis which governs the propriety and
scope of an injunction under W. Va. Code 46A-7-110 (1974)
deviates from the customary standard for the issuance of
temporary relief[27] and may best be described as whether the

26
See, e.g., Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va.
108, 219 S.E.2d 361 (1975) (“The primary object in construing a statute is to ascertain and
give effect to the intent of the Legislature.”); Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165
S.E.2d 108 (1968) (“Where the language of a statute is clear and without ambiguity the plain
meaning is to be accepted without resorting to the rules of interpretation.”).
27
In cases not involving the specialized deference accorded to the Attorney
General’s request for temporary relief, we have held that

[a] temporary injunction should be dissolved, where upon
proper denial of the allegations of the bill on which it was
granted, and in the absence of proof to sustain the bill, it appears
(continued...)

32

 Attorney General has shown by the existence of some credible
evidence, even if disputed, that reasonable cause exists to
believe that the respondent is engaging in or is likely to engage
in conduct sought to be restrained. The Attorney General need
not prove the respondent has in fact violated the [applicable
statutory law], but only needs to make a minimal evidentiary
showing of good reason to believe that the essential elements of
a violation of the [statute] are in view.

Syl. pt. 2, State ex rel. McGraw v. Imperial Mktg., 196 W. Va. 346, 472 S.E.2d 792 (footnote

added). We further have clarified that

[t]he statutory standard for issuing a preliminary
injunction under W. Va. Code, 46A-7-110 [1974] – whether
“there is reasonable cause to believe that the respondent is
engaging in or is likely to engage in conduct [prohibited by
Chapter 46A]” – does not include the requirement that there first
be proved a “pattern or practice” of violations of the statute.

Syl. pt. 4, State ex rel. McGraw v. Telecheck Servs., Inc., 213 W. Va. 438, 582 S.E.2d 885

(2003). See also Syl. pt. 4, Imperial Mktg., 196 W. Va. 346, 472 S.E.2d 792 (“Findings of

‘material misrepresentation’ or ‘actually misleading’ are not necessary predicates to support

a temporary injunction under the West Virginia Consumer Credit [and Protection] Act,

W. Va. Code 46A-7-110 (1974).”).

27
(...continued)

from the record of the cause that no great hardship can come to

the plaintiff by such dissolution, and that great and unnecessary

damage may result to the defendant by continuing the same.

Syl. pt. 2, in part, Leslie Co. v. Cosner Coal Co., 131 W. Va. 483, 48 S.E.2d 332 (1948).

33

 Applying these holdings to the facts of the case sub judice, we find that the

circuit court did not err in its issuance of the subject temporary injunction or in rendering its

ruling upholding the same. In the proceedings below, the Attorney General amply

demonstrated, “by the existence of some credible evidence, . . . that reasonable cause exists

to believe that the [Petitioners are] engaging in or [are] likely to engage in conduct sought

to be restrained.”28 By complaint filed June 3, 2010, the Attorney General asserted a cause

of action against Petitioners SPV I, SPV II, and CI29 by claiming that they were collecting

debts without a license:

Cavalry Investments [CI], SPV I, and SPV II have collected
debts in West Virginia, directly and indirectly through others, by
making collection calls, sending collection letters, reporting
debts to credit bureaus, and filing collection law suits.

The records of the West Virginia state tax department
confirm that Cavalry Investments [CI], SPV I and SPV II do not
have a license and surety bond to collect debts in West
Virginia. . . .

Cavalry Investments [CI], SPV I, and SPV II collected debts in
West Virginia without a license and surety bond in violation of
the Collection Agency Act and W. Va. Code § 46A-6-104.

Thereafter, by order entered October 7, 2011, the circuit court issued the subject temporary

injunction specifically to “ENJOIN[] [Petitioners SPV I, SPV II, and CI] from engaging in

28
Syl. pt. 2, in part, State ex rel. McGraw v. Imperial Mktg., 196 W. Va. 346,
472 S.E.2d 792 (1996).
29
The fourth Petitioner, CPS, was properly licensed at all times relevant to the
instant proceedings. See supra note 8.

34

any actions to collect debts acquired prior to the date that they became licensed” as debt

collectors in West Virginia. The record reflects that the three named Petitioners were not

licensed at the time that the Attorney General filed the instant enforcement action on June

3, 2010, and that they did not become licensed until some time thereafter. SPV I eventually

became licensed as a West Virginia debt collector on October 13, 2010; SPV II acquired its

West Virginia debt collection license on October 12, 2010; and CI achieved licensure on

October 7, 2010.

From this record evidence, we conclude that the Attorney General adequately

established the existence of “reasonable cause” that the named Petitioners had collected debts

in this State without a license sufficient to support the circuit court’s issuance of a temporary

injunction to restrain such alleged misconduct. See Syl. pt. 2, Imperial Mktg., 196 W. Va.

346, 472 S.E.2d 792. The Attorney General was not required to prove that the named

Petitioners actually had engaged in the alleged misconduct, but rather only that there exists

reasonable evidence to believe such a violation has been committed. See Syl. pt. 4,

Telecheck Servs., 213 W. Va. 438, 582 S.E.2d 885; Syl. pt. 2, Imperial Mktg., 196 W. Va.

346, 472 S.E.2d 792. Moreover, the relief granted by the circuit court was temporary in

nature; it was not permanent. As such, the circuit court’s issuance of the temporary

injunction was designed to forestall the named Petitioners’ alleged misconduct only during

the pendency of the proceedings until the matter achieves its final resolution through either

35

the substantiation or disproof of the Attorney General’s claims of the Petitioners’ alleged

statutory violations. Therefore, we conclude that the temporary injunction imposed upon the

Petitioners herein was properly issued in compliance with this Court’s prior holding in

Syllabus point 2 of State ex rel. McGraw v. Imperial Marketing, 196 W. Va. 346, 472 S.E.2d

792 (1996). Accordingly, we affirm the circuit court’s ruling in this regard.

IV.

CONCLUSION

For the foregoing reasons, in Case Number 11-1564, the October 7, 2011, order

entered by the Circuit Court of Kanawha County is affirmed, in part, and reversed, in part,

and this case is remanded for further proceedings consistent with this opinion. Furthermore,

in Case Number 12-0546, the March 20, 2012, order entered by the Circuit Court of

Kanawha County is affirmed.

Case Number 11-1564 – Affirmed, in part; Reversed, in part; and Remanded.

Case Number 12-0546 – Affirmed.

36