Franklin v. Dean (MAG+)

Filing 94

MEMORANDUM OPINION AND ORDER. Signed by Chief Judge William Keith Watkins on 5/3/2013. (Attachments: # 1 Civil Appeals Checklist)(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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MEMORANDUM OPINION AND ORDER
Plaintiff Nue Cheer Franklin’s pro se action arises under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p, and originates from
a $141.16 debt Ms. Franklin allegedly owed to a bank. Defendant Richard C. Dean,
an attorney for the bank, attempted to collect that debt after it was reduced to a
judgment, and Ms. Franklin contends that Mr. Dean violated the FDCPA in his
collection efforts. On April 10, 2013, the court held a bench trial on Ms. Franklin’s
two FDCPA claims that survived summary judgment.

Based upon careful

consideration of the testimony and evidence, the court enters its findings of fact and
conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
Judgment is due to be entered in favor of Mr. Dean.

I. JURISDICTION AND VENUE
Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. The parties
do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
The plaintiff has the burden of proving each element of her claim by a
preponderance of the evidence.

“The burden of showing something by a

‘preponderance of the evidence’ . . . ‘simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence . . . .’” Concrete Pipe
& Prod. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622
(1993). In a nonjury case, the district judge has “the exclusive province . . . to assess
the credibility of witnesses and to assign weight to their testimony.” Hearn v.
McKay, 603 F.3d 897, 904 (11th Cir. 2010) (alteration omitted). In a bench trial, the
judge also “serves as the sole fact-finder and, thus, assumes the role of the jury.”
Prickett v. United States, 111 F. Supp. 2d 1191, 1192 (M.D. Ala. 2000), aff’d without
op., 268 F.3d 1066 (11th Cir. 2001).
Moreover, where a plaintiff proceeds pro se, the pleadings and arguments are
subject to liberal construction. At the same time, however, the trial judge must refrain
from acting as the pro se litigant’s advocate. See United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
2

liberally; this rule of liberal construction stops, however, at the point at which we
begin to serve as his advocate.”); see also GJR Invs., Inc. v. Cnty. of Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir. 1998) (The court does not have “license to serve as
de facto counsel for a party.”).
III. FINDINGS OF FACT
The trial record consists of the parties’ jointly submitted exhibits and the
testimony of Ms. Franklin, Mr. Dean, and Mr. Dean’s paralegal (Melissa Duncan).
The following facts come from that record.
A.

The Parties
Mr. Dean is licensed to practice law in the state of Alabama. His law practice

focuses on debt collection for creditors, and in 2008 one of his clients was Alabama
State Employees Credit Union (“ASECU”).
In 2008, Ms. Franklin allegedly owed a debt to ASECU, and Mr. Dean’s job
was to collect that debt for ASECU. Because Mr. Dean’s alleged FDCPA violations
arise from his efforts to collect this debt, 2008 is a good place to start.
B.

2008: The Underlying Debt
On January 30, 2008, ASECU filed a complaint against Ms. Franklin in the

Montgomery County Small Claims Court, a division of the District Court. The
complaint alleged that Ms. Franklin and ASECU had entered into a contract and that
3

Ms. Franklin owed ASECU $105.87 on the principal, plus $35.29 in attorney’s fees,
for a total of $141.16. (Joint Trial Ex. 11.) On March 12, 2008, ASECU served Ms.
Franklin with a summons and complaint by certified mail. (Joint Trial Ex. 10.) Ms.
Franklin did not defend the action, and ASECU obtained a default judgment on July
1, 2008, in the amount of $141.16 plus $37.00 in costs, for a total of $178.16 (the
“money judgment”). (Joint Tr. Ex. 3.) Ms. Franklin did not appeal the money
judgment.
C.

Collecting the Debt
No collection activity on the money judgment occurred for nearly two years,

at least none that is the subject of this litigation. However, on May 17, 2010, things
picked up. Mr. Dean was in state district court on other matters when he learned that
a “Nue Cheer Franklin” had a pending case; the name had a familiar ring. Mr. Dean
asked his paralegal, Ms. Duncan, to confirm that Ms. Franklin was a defendant in one
of his debt collection cases. Mr. Dean also asked Ms. Duncan to research the
electronic state court records for any information that would assist in collecting the
debt from Ms. Franklin. Ms. Duncan found a telephone number for Ms. Franklin and
called that number in an attempt to collect the debt. This call occurred on May 17.

4

1.

The May 17, 2010 Call

Around 3:18 p.m. on May 17, Ms. Duncan dialed the telephone number she had
located for Ms. Franklin, and Ms. Franklin answered. Ms. Duncan verified the
identity of Ms. Franklin by name, date of birth, and social security number.1 Before
discussing the money judgment, Ms. Duncan gave Ms. Franklin what she called the
“mini-Miranda” warning.2 Ms. Franklin denied owing the debt and said that she was
not going to pay the judgment. And that is when the conversation ended.
To whom Ms. Duncan spoke when she dialed Ms. Franklin’s number on May
17 was a contested issue at trial. The court finds Mr. Dean’s evidence more credible
than Ms. Franklin’s for five reasons. First, Ms. Franklin admitted that she lived alone
during this time frame and was not working. Second, Ms. Franklin admitted that the
telephone number Ms. Duncan called was hers. Third, the telephone records Mr.
Dean subpoenaed confirmed a six-minute call from Mr. Dean’s office number to Ms.
Franklin’s number on May 17, 2010. Fourth, it is undisputed that Ms. Duncan and
Ms. Franklin spoke over the telephone on August 23, 2010, and the court credits Ms.
Duncan’s testimony that the voice on the other end of the call was the same on both
1

Ms. Duncan testified that her internal history notes on Ms. Franklin’s case file
confirmed these details.
2

Section 1692e(11) requires a debt collector to disclose to the debtor that the “debt
collector is attempting to collect a debt and that any information obtained will be used for that
purpose.” This disclosure is the “mini-Miranda” warning to which Ms. Duncan refers.
5

calls. Fifth, Ms. Duncan was “certain” that she had spoken to Ms. Franklin on May
17, and the court credits this testimony. Her certainty derived in part from the fact
that after the May 17 conversation, Ms. Duncan took on Ms. Franklin’s case as her
“own special project,” both because she thought Ms. Franklin had been rude during
their conversation and because Ms. Duncan learned that Ms. Franklin had sued Ms.
Duncan’s former employer.
On the other hand, the court does not find credible Ms. Franklin’s testimony
that it was not she on the other end of the line. Although she lived alone, Ms.
Franklin testified that her home was a revolving door for her sisters, extended family,
bible study friends, and others. Ms. Franklin indicated that it could have been any of
those individuals with whom Ms. Duncan spoke on May 17, but Ms. Franklin did not
produce any witness to substantiate her speculation. The court finds that this theory
is speculative and does not warrant acceptance. Moreover, the court rejects Ms.
Franklin’s argument that Ms. Duncan lied on the stand to protect Mr. Dean or to
further an alleged “personal vendetta” against Ms. Franklin.
2.

The Writ of Garnishment

Ms. Duncan’s records check also revealed that Ms. Franklin had a bank
account at Max Federal Credit Union (“Max”) with funds sufficient to partially
satisfy the money judgment. Hence, on May 21, 2010, Mr. Dean, on behalf of
6

ASECU, filed a writ of garnishment in the Montgomery County District Court,
seeking to garnish the funds in Ms. Franklin’s Max account. After service of the writ
on the garnishee, Max froze the account and deposited those funds with the state
district court. Because ASECU had not yet perfected service of the garnishment on
Ms. Franklin, the state district court clerk retained custody of the money. That was
in May, and the relevant facts pick back up on August 23, 2010, when Ms. Duncan
made a second telephone call to Ms. Franklin.
3.

The August 23, 2010 Call

For reasons not in the record, service of the writ of garnishment on Ms.
Franklin was still lacking on August 23, 2010. On August 23, Ms. Duncan called Ms.
Franklin again. Ms. Duncan explained to Ms. Franklin that the state district court
“had the money on hold” from her account and that interest was accruing on the
money judgment.3 Ms. Duncan then asked Ms. Franklin to sign a form indicating her
voluntary acceptance of a copy of the writ of garnishment so that ASECU could
obtain the funds from her Max account.4 Ms. Franklin permitted Ms. Duncan to fax

3

The court does not credit Ms. Franklin’s testimony that Ms. Duncan told her that Mr.
Dean’s office already had received the money from her bank account.
4

Mr. Dean’s practice is to try to get debtors to voluntarily accept a copy of the
garnishment. The form faxed to Ms. Franklin, which was titled “Acknowledgment of
Acceptance of Garnishment(s),” provided: “Comes Now the Defendant in the above case and
notifies this Court that he/she has voluntarily accepted a copy of the Garnishment(s) from the
Plaintiff’s attorney and is filing this document with the Court to indicate that the undersigned has
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her the form, but Ms. Franklin declined to sign it. Instead, Ms. Franklin filed an
objection to the garnishment, and the state district judge held a hearing on the matter
on September 20, 2010.
4.

September 20, 2010 Hearing

On September 20, 2010, Ms. Franklin and Mr. Dean appeared in court on Ms.
Franklin’s objection to the garnishment. The same date, the state district judge denied
Ms. Franklin’s objection and entered an order disbursing the garnished funds to
ASECU. (Joint Trial Ex. 18.) The order advised Ms. Franklin of her right to appeal
within fourteen days to the Montgomery County Circuit Court.
5.

October 4, 2010 Letter

After the garnishment of the Max account, Ms. Franklin owed only $6.50 on
the money judgment. By letter dated October 4, 2010, Mr. Dean informed Ms.
Franklin that he was “closing [the] file and ceasing all collection activity” on her
account. (Joint Trial Ex. 8.)
6.

Appeal of the Order of the State District Court

In the meantime, Ms. Franklin timely appealed the September 20 order to the
Montgomery County Circuit Court. In the state circuit court, Ms. Franklin brought
counterclaims against ASECU and argued that she did not receive proper notice of

in fact been served with a copy of the Garnishment(s) in the above case . . . . ).”
8

the writ of garnishment. On May 3, 2011, the state circuit judge granted summary
judgment in favor of ASECU on Ms. Franklin’s counterclaims and affirmed the
judgment of the state district court. (Joint Trial Ex. 14.) The Alabama Court of Civil
Appeals affirmed the judgment without opinion on May 16, 2012. (Joint Trial Ex.
12.)
7.

This Lawsuit

Ms. Franklin filed this lawsuit against Mr. Dean on August 23, 2011. The
parties have represented themselves in this litigation, Ms. Franklin as a non-lawyer5
and Mr. Dean as a lawyer. The Complaint contained eleven counts. Ten counts
alleged that Mr. Dean’s conduct in the collection of the underlying debt violated the
FDCPA, and one count alleged state-law forgery. In his Answer to the Complaint,
Mr. Dean denied the allegations and raised, among other affirmative defenses, res
judicata, collateral estoppel, and statute of limitations. Mr. Dean also 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 for failure to state a claim, see
Fed. R. Civ. P. 12(b)(6), and further moved for sanctions against Mr. Dean pursuant

5

Ms. Franklin testified that she is a paralegal by training, but not by degree.
9

to the ALAA and 28 U.S.C. § 1927. As for his part, Mr. Dean moved for summary
judgment on Ms. Franklin’s claims. See Fed. R. Civ. P. 56.
Pursuant to a 28 U.S.C. § 636 referral, the Magistrate Judge recommended that
this court deny the summary judgment motion as to the FDCPA claims in Counts 5
and 9 for violations of 15 U.S.C. §§ 1692g(a) and 1692e(10), grant Ms. Franklin’s
motion to dismiss Mr. Dean’s Counterclaim, and deny Ms. Franklin’s motion for
sanctions against Mr. Dean.

After de novo review, the court adopted the

Recommendation and overruled Ms. Franklin’s objections.
After the summary judgment proceedings, to streamline the trial and prevent
surprise, the court held a pretrial hearing one week prior to the bench trial. The court
discussed the nature of the two claims proceeding to trial, explained that the trial
record would consist only of the evidence presented at trial, and directed the parties
to meet and prepare joint trial exhibits. The court also ordered Ms. Franklin to
disclose to Mr. Dean her damages, something she had failed to do since the inception
of her lawsuit. As ordered, the parties conferred and submitted joint trial exhibits,
which were admitted on the morning of trial without objection. Ms. Franklin also
filed a notice with the court that she had tendered a damages list to Mr. Dean, but that
damages list is not part of the trial record. On April 10, 2013, the court presided over
the bench trial.
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IV. CONCLUSIONS OF LAW
This section of the opinion consists of three parts. The first part explains why
the FDCPA’s one-year statute of limitations bars the § 1692g(a) claim in Count 5.
The second part explains why the § 1692e claim in Count 9 fails on the merits. The
third part explains why collateral estoppel bars Ms. Franklin’s challenge to the
validity of service in the garnishment proceedings and also why the Rooker-Feldman
doctrine precludes Ms. Franklin from challenging the validity of the underlying debt.
A.

§ 1692g(a)
In Count 5, Ms. Franklin alleges that Mr. Dean failed to comply with

§ 1692g(a) after his office contacted her about the debt she allegedly owed to
ASECU.

Section 1692g(a) requires debt collectors to send a written notice

containing specified information – including the amount of the debt, the name of the
creditor, and a statement that the consumer has thirty days to dispute the debt – to a
consumer debtor “[w]ithin five days after the initial communication with a consumer
in connection with the collection of any debt . . . .” § 1692g(a).
Mr. Dean concedes that he did not send Ms. Franklin a written § 1692g notice
at any point, but he argues that the FDCPA’s one-year statute of limitations bars the

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claim.6 See 15 U.S.C. § 1692k(d) (providing that a claim for relief under the FDCPA
must be brought “within one year from the date on which the violation occurs”). The
sole dispute for the statute of limitations inquiry is whether the initial communication
occurred on May 17, 2010, or August 23, 2010. Because Ms. Franklin filed her
lawsuit on August 23, 2011, the § 1692g(a) claim is timely if the initial
communication occurred on August 23, 2010, but not if it occurred on May 17, 2010.
At trial, Mr. Dean offered evidence that the initial communication occurred on
May 17, when Ms. Duncan called Ms. Franklin, but Ms. Franklin denied that she was
the person on the other end of that call. Rather, Ms. Franklin testified that August 23
was the first time that she spoke with Ms. Duncan about the debt she allegedly owed
to ASECU. As set out in the Findings of Fact, the court credits Mr. Dean’s evidence,
which consists of telephone records and Ms. Duncan’s testimony, that on May 17 Ms.
Duncan spoke to Ms. Franklin about paying the money judgment in a phone call that
lasted more than six minutes.

May 17 is, therefore, the date of the initial

communication. Consequently, the § 1692g(a) claim is untimely and barred by the
FDCPA’s one-year statute of limitations.
6

As to Count 5, Mr. Dean also moved for summary judgment on the basis that the
FDCPA’s one-year statute of limitations barred the claim. However, summary judgment was not
appropriate because genuine issues of material fact existed as to the “date of the ‘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.)
The court, as the fact finder at trial, now must resolve the parties’ differing versions of the facts.
12

B.

§ 1692e
This leaves Count 9, which alleges a violation of § 1692e. This statutory

provision prohibits a debt collector from “us[ing] any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” § 1692e. Ms.
Franklin alleges that during the August 23, 2010 telephone communication, Ms.
Duncan represented to Ms. Franklin that Mr. Dean “already ha[d] the money” from
her account (Compl. ¶ 10) and that he merely needed Ms. Franklin’s signature
acknowledging his receipt of the money. Ms. Franklin contends that this statement
was false, deceptive, and misleading because the state district court, not Mr. Dean,
held the funds at the time. These are the allegations, but the trial evidence produces
a different set of facts.
Resolution of whether there was a misrepresentation under § 1692e turns on
the respective credibility of Ms. Franklin and Ms. Duncan. The court finds Ms.
Duncan more credible than Ms. Franklin on this point. Therefore, the court finds Ms.
Duncan correctly informed Ms. Franklin that the state district court held the garnished
funds in its coffers and that Mr. Dean needed Ms. Franklin to sign the
Acknowledgment of Acceptance of Garnishment form in order to obtain the money
for ASECU. Accordingly, Count 9 fails because the representation Ms. Duncan made
to Ms. Franklin during the August 23 call was not false or misleading.
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To prevail on her FDCPA claim, Ms. Franklin also must prove a “debt” within
the meaning of the FDCPA. § 1692a(5). The FDCPA defines “debt” as “any
obligation or alleged obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or services which are the subject
of the transaction are primarily for personal, family, or household purposes, whether
or not such obligation has been reduced to judgment.” § 1692a(5). In other words,
the debt must be a consumer debt. See Heintz v. Jenkins, 514 U.S. 291, 293 (1995)
(explaining that the FDCPA “limits ‘debt’ to consumer debt . . .”). Ms. Franklin
presented no evidence of the nature of the underlying debt; therefore, she failed to
prove that the debt arose out of a “transaction” that was “primarily for personal,
family, or household purposes.” § 1692a(5). Ms. Franklin’s pro se status did not
excuse her from demonstrating this element of her claim.7

7

At trial, as argued by Mr. Dean, Ms. Franklin failed to produce any evidence of actual
damages. But an award of statutory damages under the FDCPA need not “be based on proof of
actual damages.” Shoup v. McCurdy & Candler, LLC, 465 F. App’x 882, 885 (11th Cir. 2012)
(citation and internal quotation marks omitted); see also § 1692k(a) (providing for recovery of
actual and statutory damages); § 1692k(b)(1) (requiring consideration of factors that focus on the
debt collector’s conduct for statutory damages). The court, thus, cannot find that Ms. Franklin’s
FDCPA claims fail solely because she did not prove actual damages. She also failed to prove,
however, that Mr. Dean acted in a manner or with an intent that warranted statutory damages.
Ultimately, though, the failure of Ms. Franklin to establish a violation of the FDCPA pretermits
consideration of damages.
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C.

Other Matters
This is the juncture where the court separates the FDCPA wheat from chaff.

Parts A and B addressed the wheat. Part C addresses the chaff. To begin, Ms.
Franklin repeatedly has pressed two arguments in this litigation. The first is that the
garnishment of her bank account was invalid because she did not receive proper
service of the notice of garnishment. The second is that Ms. Franklin denies owing
the underlying debt. She contends that because she does not owe the underlying debt,
any collection effort by Mr. Dean violates the FDCPA. The first is chaff because of
collateral estoppel. The second is chaff because of the Rooker-Feldman doctrine.
1.

Collateral Estoppel

Collateral estoppel precludes Ms. Franklin from relitigating the issue that the
garnishment of her bank account was invalid for lack of proper service. Alabama law
governs for purposes of the collateral estoppel analysis. See Cmty. State Bank v.
Strong, 651 F.3d 1241, 1263 (11th Cir. 2011) (“In considering whether to give
preclusive effect to state-court judgments under res judicata or collateral estoppel, the
federal court applies the rendering state’s law of preclusion.”). Under Alabama law,
collateral estoppel has four elements: (1) The issue in the prior case is identical to the
issue in the present case; (2) a court of competent jurisdiction actually litigated the
issue in the prior action; (3) resolution of that issue was necessary to the prior
15

judgment; and (4) the same parties or their respective privies are involved in the two
actions. See Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So. 2d 784,
795–96 (Ala. 2007); Stewart v. Brinley, 902 So. 2d 1, 9 (Ala. 2004). All elements are
met.
First, the issue in this action and the state court action is identical. In this
lawsuit, Ms. Franklin contends that she did not receive proper service of the writ of
garnishment against her bank account. (See, e.g., Compl. ¶¶ 5, 12, 15.) Ms. Franklin
said the same thing in the state court proceedings, both in the state district court and
on appeals to the circuit court and court of civil appeals. Element one is met.
Second, the parties actually litigated the issue of improper service in a court of
competent jurisdiction. “Actually litigated” means “actually decided.” Walker v. City
of Huntsville, 62 So. 3d 474, 487 (Ala. 2010). On appeal from the state district court,
the state circuit court held that Ms. Franklin’s assertion of improper service was not
an impediment to the judgment:
Rule 64A [of the Alabama Rules of Civil Procedure] requires “the
officer issuing the garnishment” to issue notice to the defendant.
Defendant interprets “officer” to mean the plaintiff. The Court believes
that the term “officer” refers to the clerk of the court or court official.
In fact, a notice of garnishment was issued contemporaneously with the
process of garnishment – it apparently was not actually served (case
action summary from the district court). The purpose of requiring
issuance of notice is to comport with notions of due process. At the end

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of the day, defendant ultimately had her day in court and was heard by
a judge before any monies were released to the creditor.
(Joint Trial Ex. 14 (brackets added); see also Joint Trial Ex. 12 (Order affirming,
without opinion, the circuit court judgment).)
To the extent that Ms. Franklin challenges the competency of the court’s
jurisdiction, that challenge lacks merit. “[A] court’s jurisdiction is not competent if
its judgment is ‘void for want of personal jurisdiction, subject-matter jurisdiction, or
due process of law.’” Crooked Creek Props., Inc. v. Ensley, No. 08cv1002, 2009 WL
3644835, at *10 (M.D. Ala. Oct. 28, 2009) (quoting Neal v. Neal, 856 So. 2d 766,
779 (Ala. 2002)), aff’d 380 F. App’x 914 (11th Cir. 2010); see also Lloyd Noland
Found., Inc., 979 So. 2d at 795 (“A court of competent jurisdiction is a court with
jurisdiction over the subject matter.”).8 There is no dispute that the state district court
had jurisdiction over the parties and the subject matter to issue a writ of garnishment
to enforce its judgment. On the state court record, the alleged lack of improper
service, if that was the case, does not render the judgment void for lack of due
process. For purposes of determining whether a court had competent jurisdiction,

8

Although Neal and Lloyd defined a “court of competent jurisdiction” in the context of
claim preclusion (res judicata), rather than issue preclusion (collateral estoppel), the related
doctrines share common elements. See Stroeker v. Harold, --- So. 3d ---, ----, 2012 WL
4040362, at *6 (Ala. Civ. App. 2012) (noting that an “essential element” of both res judicata and
collateral estoppel “is that the claim or issue has been or could have been decided in a prior
action by a court of competent jurisdiction”).
17

“due process of law means notice, a hearing according to that notice, and a judgment
entered in accordance with such notice and hearing.” Neal, 856 So. 2d at 781–82
(citation and internal quotation marks omitted).
Prior to the entry of judgment, Ms. Franklin had notice of the garnishment,
objected to the garnishment, and participated in a hearing before the state district
judge. Even if the state court got it wrong when it ruled on the issue of service, an
erroneous judgment is distinct from a void judgment. See Neal, 856 So. 2d at 782
(Neither “misinterpretations” nor “misapplications” of the law demonstrate a
violation of due process of law so as to void the judgment.). Element two is met.
Third, the issue of service was necessary to the judgment. An issue is
necessary to the judgment or necessarily decided when a party presents an issue to the
court and the court resolves it. See Walker, 62 So. 3d at 487; cf. Cmty. State Bank,
651 F.3d at 1264 (observing that under Georgia law, an element of collateral estoppel
is that the issue “necessarily had to be decided in order for the previous judgment to
have been rendered”). Here, Ms. Franklin challenged the effectiveness of service of
the garnishment on her, and the state court addressed that issue in the process of
reaching a judgment. Element three is met.
Fourth, this suit is between the same parties and privies. “‘Privity’ is a flexible
legal term, comprising several different types of relationships and generally applying
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when a person, although not a party, has his interests adequately represented by
someone with the same interests who is a party.” Jim Parker Bldg. Co. v. G & S
Glass & Supply Co., 69 So. 3d 124, 132 (Ala. 2011) (citation and internal quotation
marks omitted). “The test for determining if two parties are in privity focuses on
identity of interests.” City of Montgomery v. Vaughn, --- So. 3d ---, ----, 2013 WL
1694474, at *6 (Ala. Civ. App. 2013) (citation and internal quotation marks omitted).
Ms. Franklin was a party in the state court proceedings. While Mr. Dean was
not, he was ASECU’s attorney. Mr. Dean and ASECU shared the same interest in the
state-court action because each had a stake in obtaining a garnishment judgment
against Ms. Franklin’s bank account for payment of the money judgment. See id.
at *7 (discussing privity). Additionally, in Mr. Dean’s role as ASECU’s attorney in
the state-court action, Mr. Dean “had an ample laboring oar himself in the conduct
of the [underlying suit].” Crooked Creek Props., 2009 WL 3644835, at *18 & n.20
(finding that for purposes of res judicata, attorney was in privity with the client he
represented in the prior action). Element four is met.
Based on the foregoing, collateral estoppel is a successful affirmative defense.
The prior state-court garnishment judgment bars Ms. Franklin from relitigating
whether she received proper service in the garnishment proceedings.

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3.

The Rooker-Feldman Doctrine

To the extent that Ms. Franklin asks this court to undo the state district court’s
default judgment against her and to decide whether she owed the underlying debt, the
court lacks subject matter jurisdiction to do so under the Rooker-Feldman doctrine.
“The Rooker-Feldman doctrine places limits on the subject matter jurisdiction of
federal district courts and courts of appeal over certain matters related to previous
state court litigation.” Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332
(11th Cir. 2001). It precludes “lower federal courts . . . from exercising appellate
jurisdiction over final state-court judgments.” Nicholson v. Shafe, 558 F.3d 1266,
1268 (11th Cir. 2009) (citation and internal quotation marks omitted). RookerFeldman’s confines are narrow, however, applying only to “cases brought by
state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review
and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005).
First, the court must decide whether Ms. Franklin is a state-court loser by way
of a state-court judgment. Ms. Franklin lost in the state district court on July 1, 2008,
when ASECU obtained a default judgment against her on the breach-of-contract

20

claim.9 Although Ms. Franklin complains that the judgment was by default, a default
judgment counts for purposes of Rooker-Feldman. See MSK EyEs Ltd. v. Wells
Fargo Bank, Nat’l Ass’n, 546 F.3d 533, 539 (8th Cir. 2008) (“The fact that a
judgment was entered on a party’s default does not alter the applicability of the
Rooker-Feldman doctrine.”); cf. Jones v. Commonwealth Land Title Ins. Co., 459 F.
App’x 808, 810 (11th Cir. 2012) (rejecting argument that a motion for default
summary judgment was a final judgment for purposes of Rooker-Feldman because
there was no indication in the record that the state court ever ruled on the motion).
Second, the court must determine whether Ms. Franklin complains of injuries
caused by the default judgment. This analysis focuses on whether Ms. Franklin’s
challenge to the validity of the underlying debt is “‘inextricably intertwined’ with the
state court judgment.” Cormier v. Horkan, 397 F. App’x 550, 553 (11th Cir. 2010).
“A claim is inextricably intertwined if it would effectively nullify the state court
judgment or it succeeds only to the extent that the state court wrongly decided the
issues.” Id. Any claim by Ms. Franklin that she did not owe the underlying debt falls
squarely within these strictures.

9

The later appeal of the garnishment order to enforce the money judgment was pending
in the Alabama Court of Civil Appeals when Ms. Franklin filed this federal lawsuit. That is why
the Rooker-Feldman doctrine does not apply to the garnishment proceeding. See Nicholson, 558
F.3d at 1271 (holding that the Rooker-Feldman doctrine is inapplicable to cases where the state
court judgment is pending on appeal when the federal court action commences).
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The state-court default judgment established that Ms. Franklin owed the debt
that Mr. Dean later sought to collect on ASECU’s behalf. In attacking the validity
of the underlying debt in this lawsuit, Ms. Franklin essentially asks this court to
review the state-court judgment and give her relief denied in the state court.
Third and finally, the court must consider whether the state court rendered
judgment before these federal proceedings commenced. Ms. Franklin filed her
federal-court lawsuit on August 23, 2011, more than three years after the entry of the
default judgment that she did not appeal. See Ala. Code § 12-12-70(a) (providing
fourteen days to file an appeal from a final judgment in a state district court). The
default judgment became final long before Ms. Franklin filed this lawsuit. The court
finds, therefore, that the state court entered judgment prior to the commencement of
this lawsuit.
In sum, and in the words of Exxon Mobil, Ms. Franklin was a “state-court
loser[ ] complaining of injuries caused by [a] state-court judgment[ ] rendered before
the district court proceedings commenced and inviting district court review and
rejection of those judgments.” 544 U.S. at 284. Any claim in this case seeking to
invalidate the default judgment falls squarely within the Rooker-Feldman prohibition
against de facto appeals to a federal district court. This court is without jurisdiction
to entertain such a claim.
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V. CONCLUSION
Based on the foregoing, Ms. Franklin failed to prove by a preponderance of the
evidence her FDCPA claims in Counts 5 and 9. The applicable one-year statute of
limitations bars Count 5, and Count 9 fails on the merits.
A separate judgment will be entered.
DONE this 3rd day of May, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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