Franklin v. Dean (MAG+)

Filing 74

ORDER that Ms. Franklin's objection 73 is OVERRULED. For the reasons stated by the Magistrate Judge in the Recommendation, it is further ORDERED as follows: (1) Mr. Dean's motion for summary judgment 48 is DENIED as to Counts 5 and 9 a nd GRANTED as to all other claims in Ms. Franklin's Complaint; (2) Ms. Franklin's motion to dismiss Mr. Dean's Counterclaim (included within 29 ) is GRANTED; and (3) Ms. Franklin's motion for sanctions against Mr. Dean pursuant to the Alabama Litigation Accountability Act and 28 U.S.C. § 1927 (also included within 29 is DENIED. Signed by Chief Judge William Keith Watkins on 3/4/2013. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
NUE CHEER FRANKLIN,
Plaintiff,
v.
RICHARD C. DEAN,
Defendant.

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) CASE NO. 2:11-CV-683-WKW
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[WO]
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ORDER

Before the court is Recommendation of the Magistrate Judge. (Doc. # 72.)
Plaintiff Nue Cheer Franklin filed an objection. (Doc. # 73.)

After careful

consideration of the record, the court finds that the objection is due to be overruled
and the Recommendation adopted.
Ms. Franklin’s suit against Defendant Richard C. Dean, an attorney who
practices debt collection law, arises from earlier garnishment proceedings in state
court. On July 1, 2008, Mr. Dean’s client, the Alabama State Employees Credit
Union, obtained a default judgment in state court against Ms. Franklin in the amount
of $239.95 for breach of contract. On May 28, 2010, Mr. Dean attempted to recover
the judgment on behalf of his client by filing an application for a process of
garnishment directed to Max Federal Credit Union, where Ms. Franklin had an
account. The writ of garnishment issued; Ms. Franklin contested the writ, but

ultimately she did not prevail in the state district court or on appeal. As a result, the
earnings in Ms. Franklin’s bank account were garnished, satisfying all but $6.50 of
the judgment.
In this lawsuit, Ms. Franklin alleges that Mr. Dean’s conduct in the
garnishment of her bank account violated various provisions of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p, and amounted to
state law fraud. Mr. Dean filed a Counterclaim against Ms. Franklin pursuant to the
Alabama Litigation Accountability Act (“ALAA”), Ala. Code §§ 12-19-270 to
12-19-276. Ms. Franklin moved to dismiss the Counterclaim pursuant to Federal
Rule of Civil Procedure 12(b)(6), and further moved for sanctions against Mr. Dean
pursuant to the ALAA and 28 U.S.C. § 1927. As for his part, Mr. Dean moved for
summary judgment on Ms. Franklin’s claims pursuant to Federal Rule of Civil
Procedure 56.
In the Recommendation, the Magistrate Judge recommends that this court grant
the summary judgment motion as to all claims except the FDCPA claims in Counts
5 and 9, that Ms. Franklin’s motion to dismiss Mr. Dean’s Counterclaim be granted,
and that Ms. Franklin’s motion for sanctions against Mr. Dean be denied. The
Recommendation also incorporates rulings on Ms. Franklin’s evidentiary objections.
(See, e.g., Doc. # 72, at 1 n.1.)

Ms. Franklin filed an objection to the
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Recommendation, contending that the Magistrate Judge incorrectly granted summary
judgment, improperly ruled on procedural and evidentiary matters, and improperly
denied her motion for sanctions.

Mr. Dean did not file an objection to the

Recommendation.
Only two of Ms. Franklin’s claims, then, are not subject to objection. Those
are the claims in Counts 5 and 9 that the Magistrate Judge recommends proceed to
trial. Count 5 alleges a violation of 15 U.S.C. § 1692g(a), which requires debt
collectors to send a written validation notice containing specified information to a
consumer debtor within five days after the initial communication.1 Count 9 alleges
a violation of 15 U.S.C. § 1692e(10),which prohibits a debt collector from employing
“any false representation or deceptive means to collect or attempt to collect any debt
or to obtain information concerning a consumer.”2 Additionally, there is no challenge

1

In Count 5, Ms. Franklin alleges that Mr. Dean failed to follow up his initial contact
with Ms. Franklin with a debt validation letter. Mr. Dean urges summary judgment on this claim
on the sole basis that the FDCPA’s one-year statute of limitations bars the claim. See 15 U.S.C.
§ 1692k(d). The Magistrate Judge finds, however, that genuine issues of material fact exist
“regarding the date of ‘initial communication’ and whether Mr. Dean’s obligation to send [Ms.
Franklin] the written notice ripened into a claim within the year preceding the filing date of this
action.” (Doc. # 72, at 9.)
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In Count 9, Ms. Franklin alleges that Mr. Dean’s representation that he already had
collected the garnished funds was false and misleading because the state court, not Mr. Dean,
held the funds at that time. Accepting as true Ms. Franklin’s evidence supporting this claim, the
Magistrate Judge finds that “[a] reasonable factfinder might well conclude that the representation
from a debt collector that he ‘already [had] the funds’ in his possession could affect the decision
of the ‘least sophisticated consumer’ regarding whether to pursue a claim of exemption in court
or otherwise to contest the garnishment.” (Doc. # 72, at 23.)
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to the Magistrate Judge’s recommendation that Ms. Franklin’s motion to dismiss Mr.
Dean’s counterclaim be granted. After independent review of the record, the court
finds that those unchallenged rulings are correct.
As to those challenged portions of the Recommendation, a Magistrate Judge’s
recommendation regarding non-dispositive matters is set aside only if it is clearly
erroneous or contrary to law. See Fed. R. Civ. P. 72(a). After careful consideration
of the Magistrate Judge’s non-dispositive rulings on procedural and evidentiary
matters, the court finds that those rulings are neither clearly erroneous nor contrary
to law. Accordingly, Ms. Franklin’s objections to the Magistrate Judge’s nondispositive rulings are OVERRULED.
With regard to the Magistrate Judge’s recommendations as to the dispositive
matters, this court must make a de novo determination of those portions of the
Recommendation to which the objection applies. 28 U.S.C. § 636(b)(1). Upon de
novo review, and after careful consideration of the submissions and arguments of the
parties, the court finds that Ms. Franklin’s objection lacks merit. Accordingly, it is
ORDERED that Ms. Franklin’s objection (Doc. # 73) is OVERRULED. For the
reasons stated by the Magistrate Judge in the Recommendation, it is further
ORDERED as follows:

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(1)

Mr. Dean’s motion for summary judgment (Doc. # 48) is DENIED as to

Counts 5 and 9 and GRANTED as to all other claims in Ms. Franklin’s Complaint;
(2)

Ms. Franklin’s motion to dismiss Mr. Dean’s Counterclaim (included

within Doc. # 29) is GRANTED; and
(3)

Ms. Franklin’s motion for sanctions against Mr. Dean pursuant to the

Alabama Litigation Accountability Act and 28 U.S.C. § 1927 (also included within
Doc. # 29) is DENIED.
DONE this 4th day of March, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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