Bass v. Mike Rome Holdings, LLC

Filing 76

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING 67 MOTION for Summary Judgment as set out herein. By separate Order, this case will be set for Jury Trial. Signed by Judge Virginia Emerson Hopkins on 3/2/2017. (JLC)

FILED
2017 Mar-02 AM 11:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RHONDA BASS,
Plaintiff,
v.
MIKE ROME HOLDINGS, LLC,
D/B/A MRH & ASSOCIATES, , et
al.,
Defendant.

)
)
)
)
) Case No.: 2:13-CV-2002-VEH
)
)
)
)
)
)

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION AND PROCEDURAL HISTORY
A.

The Original Complaint

This civil action was originally filed on October 30, 2013, by the Plaintiff,
Rhonda Bass, against Mike Rome Holdings, LLC d/b/a MRH & Associates (“Mike
Rome Holdings”). (Doc. 1). The original Complaint alleged that Mike Rome
Holdings was liable for: violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et seq. (Count One); the Alabama state law claim of invasion of
privacy (Count Two); the Alabama state law claim of “negligent, wanton, and/or
intentional hiring and supervision of incompetent debt collectors” (Count Three); and

“wanton, malicious, and intentional conduct” (Count Four). The Plaintiff also
demanded a jury trial. (Doc. 1 at 16).
On February 3, 2014, the clerk of court entered the default of Mike Rome
Holdings. (Doc. 13). On August 16, 2017, the Plaintiff filed a motion for entry of a
default judgment. (Doc. 16). On August 15, 2014, the Court ordered Mike Rome
Holdings to show cause “no later than August 29, 2014, why a default judgment
should not be entered against it.” (Doc. 17 at 1). Mike Rome Holdings failed to
respond to that Order.
B.

The Amended Complaint

On September 24, 2014, the court issued an order which, inter alia, stated:
The allegations of the complaint establish that the plaintiff
“allegedly owes a debt on a car deficiency after a repossession,” and that
the defendant is attempting to collect on that debt. However, except for
a discussion of a November 9, 2012, letter sent to the plaintiff, the
remainder of the complaint contains only generalized allegations which
amount to nothing more than “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action,” which the Supreme
Court has said “will not do.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 557). Further, the complaint is shotgun in nature as it makes
a number of allegations, without explaining which allegations support
what counts. Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg
Corp., 305 F.3d 1293, 1295-96 (11th Cir. 2002) (“The typical shotgun
complaint contains several counts, each one incorporating by reference
the allegations of its predecessors, leading to a situation where most of
the counts (i.e., all but the first) contain irrelevant factual allegations and
legal conclusions.”). For these reasons, the court holds that the

2

complaint, as currently pled, fails to state a claim upon which relief may
be granted.
The court DEFERS ruling on the motion for default judgment for
30 days, during which time the plaintiff may amend the complaint to
more adequately set out facts which support her claims and explain
which facts support what counts. Should the plaintiff not amend within
the next 30 days, the court will attempt the difficult task of ruling on the
motion using the complaint as currently pled.
(Doc. 18 at 4-5).
On October 23, 2014, the Plaintiff filed an Amended Complaint which again
named only Mike Rome Holdings as a Defendant. The Amended Complaint alleged
only violations of the following sections of the Fair Debt Collections Practices Act:
– Section 1692c(a)(1) which prohibits communications “at any unusual time
or place or a time or place known or which should be known to be
inconvenient to the consumer” (Count One);
– Section 1692e which generally prohibits a debt collector from using “any
false, deceptive, or misleading representation or means in connection with the
collection of any debt.” (Count Two);
– Section 1692e(2)(A) which specifically prohibits “[t]he false representation
of . . . the character, amount, or legal status of any debt” (Count Three);
– Section 1692e(4) which prohibits “[t]he representation or implication that
nonpayment of any debt will result in … garnishment, attachment, or sale of
3

any property or wages of any person unless such action is lawful and the debt
collector or creditor intends to take such action[]” (Count Four);
– Section 1692e(5) which prohibits a debt collector from threatening “to take
any action that cannot legally be taken or that is not intended to be taken” in
an attempt to collect a debt (Count Five);
– Section 1692e(10) which prohibits “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt or to obtain
information concerning a consumer” (Count Six);
– Section 1692e(11) which requires that the Defendant provide warnings and
disclosures that it is a debt collector attempting to collect a debt (Count Seven);
– Section 1692f which prohibits a debt collector generally from using “unfair
or unconscionable means to collect or attempt to collect any debt” (Count
Eight); and
– Section 1692f(1) which prohibits specifically “[t]he collection of any amount
(including any interest, fee, charge, or expense incidental to the principal
obligation) unless such amount is expressly authorized by the agreement
creating the debt or permitted by law” (Count Nine).
The Amended Complaint dropped the original Complaint’s Alabama state law claims
of invasion of privacy; “negligent, wanton, and/or intentional hiring and supervision
4

of incompetent debt collectors;” and “wanton, malicious, and intentional conduct.”
Other than the federal claims listed above, the Amended Complaint contained no
other claims.
C.

Default Judgment and First Trial Setting

On October 30, 2014, the Court entered an Order which, in part, stated:
[I]t is hereby ORDERED, ADJUDGED, and DECREED that
JUDGMENT BY DEFAULT is hereby awarded against the defendant,
and in favor of the plaintiff, on all counts of the Amended Complaint.
Because the plaintiff has demanded a jury trial, a trial on the issue of
damages only will be set by a later order.
(Doc. 20 at 19) (emphasis in original). The case was set for trial to be held on January
15, 2015. (Doc. 29 at 14).
The morning of trial, counsel for the Plaintiff made an oral motion to continue
the trial setting so that he could name additional defendants. That motion was granted
and the trial was continued generally. (Doc. 30).
D.

The Second Amended Complaint

The Plaintiff filed her Second Amended Complaint on March 4, 2015. (Doc.
32). In addition to again naming Mike Rome Holdings, the Second Amended
Complaint added the following new Defendants: Mike Rome; Pickett & Rome, LLC;
Pickett & Rome, LLC d/b/a MRH & Associates; Benson, Pickett, Lauricella & Rome,
LLC; and Benson, Pickett, Lauricella & Rome, LLC d/b/a MRH & Associates. (Doc.
5

32 at 3-4). Against all Defendants, the Second Amended Complaint states that same
counts brought in the First Amended Complaint.1 In addition, it sets out another count
claiming that the Defendants are alter egos of each other. (Count Ten).
E.

Default – Part Two

On May 29, 2015, when the new Defendants failed to respond to the Second
Amended Complaint, the Plaintiff moved for the clerk to enter their default. (Doc.
38). On June 1, 2015, the Clerk of Court entered the default of the new Defendants.
(Doc. 39).2 On June 3, 2015, the Defendants appeared and moved to set aside the
entries of default against each of them. (Doc. 40). Because the Defendants failed to
satisfy their burden,3 the motion was denied without prejudice on June 16, 2015.
(Doc. 41). On June 26, 2015, the Defendants again moved this Court to set aside the
entries of default against each of them, and the default judgment against Mike Rome
Holdings. (Doc. 42). This Court granted that motion on August 6, 2015. (Doc. 43).

1

The Second Amended Complaint notes that the label “MRH” refers to all defendants
collectively. (See doc. 32 at 4, ¶10). Each count refers, in one form or another, to conduct by
“MRH.” In other words, all counts are alleged against all Defendants.
2

As noted, the Plaintiff had already obtained a default judgment against Mike Rome
Holdings.
3

This Court noted that the Defendants had failed to show “good cause” for setting aside
default, which is required under Rule 55 (c) of the Federal Rules of Civil Procedure. (Doc. 41 at
2). The Court also noted that the motion made no attempt to set aside the default judgment
entered as to Mike Rome Holdings. (Doc. 41 at 3).
6

F.

Answers

Thereafter, on August 16, 2015, the Defendants filed an Answer to the Second
Amended Complaint. (Doc. 44). Noting that the Answer violated Rules 8 and 11 of
the Federal Rules of Civil Procedure, the Court ordered the Defendants to file an
Amended Answer. (Doc. 45). The Defendants filed their Amended Answer on
September 23, 2015. (Doc. 46).
G.

Discovery Delays

This Court entered an Order on November 30, 2015, setting June 10, 2016, as
the discovery deadline, and July 11, 2016, as the dispositive motion deadline. (Doc.
50 at 1, 5). On June 8, 2015, the parties filed a “Joint Motion for Extension of
Deadlines,” stating that the parties only need “an additional thirty (30) days to
complete discovery.” (Doc. 51 at 2). Further, the parties stated that they “believe[d]
this additional time [would] allow them to resolve the outstanding discovery issues
and [would] put them in a better position to resolve this matter through mediation or
settlement or be prepared for trial if necessary.” (Doc. 51 at 2). The parties asked this
Court to “extend the Discovery deadline and all remaining deadlines by thirty (30)
days.” (Doc. 51 at 3). By margin order, this Court granted that motion on June 8,
2016 (doc. 52), making the new discovery deadline July 10, 2016, and the new
dispositive motion deadline August 10, 2016.
7

On June 27, 2016, counsel for the Defendants filed a motion to withdraw,
stating that his representation “was terminated on June 22, 2016.” (Doc. 53). On June
28, 2016, the Court issued the following Order:
Because the motion does not indicate that it was served on the
Defendants, Mr. Simpson is ORDERED to certify to the Court that he
has served a copy of his motion, and this order, on his clients. Further,
Mr. Simpson is ORDERED to remind his clients that limited liability
companies cannot proceed in federal court pro se. See Palazzo v. Gulf
Oil Corp., 764 F.2d 1381 (11th Cir.1985), cert. denied, 474 U.S. 1058
(1986); IBEW-NECA Local 505 Welfare & Pension Plans v. R.D. Elec.,
L.L.C., (striking pro se answer of limited liability company); Streeter v.
Office of Douglas R. Burgess, LLC, 2008 WL 508456 (M.D.Ala.,2008)
(limited liability company required to have representation by counsel).
Mr. Simpson shall also certify to the Court that he has so reminded his
clients.
Thirty (30) days after the date of this Order, the motion to
withdraw will be granted as long as the above certifications have been
filed, and no objection to the motion has been received.
(Doc. 54 at 2) (emphasis in original). On July, 11, 2016, instead of complying with
that Order, Defendants’ counsel filed a notice stating: “[p]ursuant to the Order of this
Honorable Court dated June 28, 2016, Mike Rome was delivered and served copy of
that Order of this Court, dated June 28, 2016, via electronic mail on June 29, 2016.”
(Doc. 55 at 1). That same day, the Plaintiff filed a “Motion to Compel, or,
Alternatively, to Extend Discovery Deadlines.” (Doc. 56). In her motion, the Plaintiff
noted that, after delays and promises of discovery responses and deposition dates,

8

neither had been forthcoming, and that, until Defendants’ counsel was allowed to
withdraw, she could not contact the Defendants directly.
On July 19, 2016, this court entered an Order which, inter alia, stated:
1.

[Defense counsel] shall provide the certifications required by the
Court’s June 28, 2016, Order no later than July 26, 2016. He shall
ALSO provide contact information for each Defendant before
that date.

2.

ALSO, before July 26, 2016, [Defense counsel] shall certify to
the Court that he has provided a copy of the Plaintiff’s
Motion to Compel to the Defendants, along with a copy of all
discovery requests related thereto, so that the Defendants may
provide them to their new attorney.

3.

The Motion to Compel is DENIED without prejudice. The
Plaintiff may refile the motion, if necessary, after the Motion to
Withdraw is resolved.

4.

The deadline to complete discovery is hereby EXTENDED to
October 11, 2016.

(Doc. 57 at 2-3) (emphasis in original). After Defendants’ counsel again filed
certifications which did not comply with this Court’s order (doc. 58), on July 25,
2016, this Court denied the motion to withdraw. (Doc. 59).
On August 18, 2016, this Court set a new dispositive motion deadline for
November 14, 2016. (Doc. 60). On September 1, 2016, after Defendants’ counsel
filed a proper motion and certifications (doc. 61), this Court granted his motion to
withdraw (doc. 62).
9

H.

The Motion for Summary Judgment

The instant motion for summary judgment was filed by the Plaintiff on
December 12, 2016. (Doc. 67). It is now under submission. For the reasons stated
herein, the motion will be GRANTED in part and this matter will be set for trial.
II.

STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there

is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears
the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or

10

by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
11

an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.

12

III.

FACTS4
The following facts are deemed to be admitted since they have been proffered

by the Plaintiff and were not disputed by the Defendants:5
1.
Plaintiff purchased a 2004 Chevrolet Malibu in early 2012 with
financing through Redemption Financial Services [(“Redemption”)].
(Affidavit of Bass ¶ 4, Ex. “A”).
***

4

The facts set out herein are gleaned in substantial part on the facts proffered by the
parties. To the extent that a party has proffered a fact which is not disputed, it has been included
herein exactly as it was proffered, without citation. To the extent that a fact proffered by a party
was disputed by another party, the Court first examined the proffered fact to determine whether
the evidence cited in support of that fact actually supported the fact as stated. If it did not, the fact
was not included. If it did, the Court then looked to whether the evidence cited in support of the
dispute actually established a dispute. If it did not, the Court presented the fact as proffered, with
citation to the evidence supporting the fact as proffered. If the evidence did support a dispute, the
fact was cast, as this Court must, in the light most favorable to the non-movant, with citation to
the evidence supporting the fact in that light. If more explanation was needed, the Court included
that information in an appropriate footnote. Some facts proffered by the parties, which the Court
deemed irrelevant and/or immaterial, may have been omitted. Further, as necessary, the Court
may have included additional facts cast in the light most favorable to the non-movant.
5

The Uniform Initial Order entered in this case on October 31, 2013, provides:

The first section [of a brief in response to a motion for summary
judgment] must consist of only the non-moving party’s disputes, if any, with the
moving party’s claimed undisputed facts. The non-moving party’s response to the
moving party’s claimed undisputed facts shall be in separately numbered
paragraphs that coincide with those of the moving party’s claimed undisputed
facts. Any statements of fact that are disputed by the non-moving party must be
followed by a specific reference to those portions of the evidentiary record upon
which the dispute is based. All material facts set forth in the statement required of
the moving party will be deemed to be admitted for summary judgment purposes
unless controverted by the response of the party opposing summary judgment.
(Doc. 5 at 17) (emphasis in original).
13

5.
In the fall of 2012, Ms. Bass’[s] car was repossessed and[,] after
the sale of the vehicle, she allegedly owed a deficiency on the car.
(Complaint ¶ 7, [Doc. 1])
6.
Ms. Bass received a letter from Redemption Financial alleging a
deficiency after the sale of $5,607.46 plus interest of $442.07. (Affidavit
of Bass ¶ 10, Ex. “A”)(Ex. “B”).
7.
Mike Rome Holdings . . . purchased or was assigned the alleged
deficiency for collections. (Complaint ¶ 10, [Doc. 1]).
8.
MRH6 sent Ms. Bass a letter threatening to garnish $6,188.01 that
misstated the law and threatened garnishment “without any further court
proceedings or notice to you, ten days or more from the date hereof.[”]
(Affidavit of Bass ¶4, Ex. “A”)(Ex. “C”).
9.

The letter states,
PLEASE TAKE NOTICE that a garnishment summons or
levy may be served upon your employer or other third
parties, without any further court proceedings or notice to
you, ten days or more from the date hereof. If your earnings
are garnished, your employer must show you how the
amount that is garnished from your earnings was
calculated. You have the right to request a hearing if you
claim the garnishment is incorrect.
You may wish to contact the attorney for the creditor in
order to arrange for a settlement of the debt or contact an
attorney to advise you about exemptions or other rights.

(Ex. “C”).

6

Again, the Second Amended Complaint makes it clear that references to “MRH” refer to
all Defendants collectively. (See doc. 32 at 4, ¶10).
14

10. As a part of its collection efforts, MRH also began calling
Plaintiff to collect the debt. (Affidavit of Bass ¶ 11, Ex. “A”).
11. In particular, Ms. Bass was called by a collector named Lester
Trey, an employee of MRH to collect the debt. (Affidavit of Bass ¶ 12,
Ex. “A”).
12. When Ms. Bass told him she did not think she could afford to pay
the debt due to her limited budget, he began grilling her about items on
her credit report that he had apparently pulled from the credit bureaus.
(Affidavit of Bass ¶ 12, Ex. “A”).
13. Lester pried into her financial affairs asking about other loans,
whether she was going to be a nurse due to some education loans and
began threatening Ms. Bass with garnishment if she didn’t agree to the
deal he offered. (Affidavit of Bass ¶ 12, Ex. “A”).
14. MRH collectors also called Ms. Bass extremely early in the
morning, before 8 a.m., two other times and again harassed her to pay
this debt threatening that if she did not they would send the account
straight to garnishment. The collectors made these threats despite her
informing them that she could not afford the payments due to her being
on Social Security disability. (Affidavit of Bass ¶ 17, Ex. “A”).
15. At the time of these threats, Ms. Bass’[s] sole income was from
Social Security in the amount of $975 per month. This was barely
enough for her to pay her bills and buy food. (Affidavit of Bass ¶ 21, Ex.
“A”).
16. These threats to Ms. Bass were extremely upsetting due to her
being on a fixed income from Social Security Disability payments due
to depression and anxiety. (Affidavit of Bass ¶ 19, Ex. “A”).
17. She felt helpless that the defendants could supposedly garnish her
in only 10 days without having to go to court to prove the debt, without
having to prove that she owed it and without her being able to do
anything to stop it. (Affidavit of Bass ¶ 19, Ex. “A”).
15

18. Ms. Bass received other similar calls threatening garnishment and
harassing her if she did not pay. (Affidavit of Bass ¶ 21, Ex. “A”).
19. Ms. Bass was worried that if her payments were garnished that
she might lose her home and fall behind on other bills. These threats
caused her to become depressed and suffer from anxiety over the
consequences of being garnished. (Affidavit of Bass ¶ 12-13, 21, Ex.
“A”).
20. During this time, Ms. Bass was seeing a therapist to help her deal
with depression and anxiety. After the phone call, she was so upset she
felt the need to take a Valium to calm her nerves. (Affidavit of Bass ¶
14-15, Ex. “A”).
21. Ms. Bass also later discussed the depression and anxiety with her
counselor to help her deal with the depression and worry from MRH’s
collection efforts against her. (Affidavit of Bass ¶ , Ex. “A”).
(Doc. 68 at 11-14).
IV.

ANALYSIS
Based on the admitted facts, the Court determines that each of the Defendants

is a “debt collector,” as defined by the FDCPA. See 15 U.S.C.A. § 1692a(6) (“any
person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any debts”). Similarly, the
court determines that the Plaintiff is a “consumer” as defined by the FDCPA. See, 15
U.S.C.A. § 1692a(3) (“any natural person obligated or allegedly obligated to pay any
debt”).

16

A.

Count One

The Plaintiff first moves for summary judgment as to Count One, which alleges
a violation of section 1692c(a)(1). That section prohibits a debt collector from
communicating with a consumer in connection with the collection of any debt “at any
unusual time or place or a time or place known or which should be known to be
inconvenient to the consumer.”7 The statute further provides that “a debt collector
shall assume that the convenient time for communicating with a consumer is after 8
o'clock antemeridian and before 9 o'clock postmeridian, local time at the consumer's
location.” It is admitted that the Defendants called the plaintiff, at least two times,
prior to 8:00 a.m. This is sufficient to establish liability on this count. Summary
judgment will be granted to the Plaintiff, and against all Defendants8, as to Count
One, on the issue of liability.
B.

Counts Two, Three, and Six

The Plaintiff argues that she is entitled to summary judgment as to Counts Two,
Three, and Six. Count Two alleges a violation of section 1692e, which generally

7

To be clear, the motion actually argues that the “Defendants violated § 1692c(a)(1),”
which is the basis for Count One. The Plaintiff’s entire motion focuses not on counts, but on the
law which was violated. For clarity, the Court will “convert” the Plaintiff’s argument and focus
instead on counts.
8

Each count alleges a violation by “MRH,” which, as noted, refers to all Defendants
collectively. Judgment therefore is proper as to all Defendants without regard to whether each is
an alter ego of some other, as alleged in Count Ten.
17

prohibits a debt collector from using “any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” Count Three
alleges a violation of section 1692e(2)(A), which specifically prohibits a debt
collector from “[t]he false representation of . . . the character, amount, or legal status
of any debt.” Count Six alleges a violation of section 1692e(10), which prohibits a
debt collector from “[t]he use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information concerning a
consumer.”
Because there was no judgment, or even any pending court action against the
plaintiff, each of these sections was violated by the letter sent to the Plaintiff which
falsely stated that “a garnishment summons or levy may be served upon your
employer or other third parties, without any further court proceedings or notice to
you, ten days or more from the date hereof,” and “[y]ou have the right to request a
hearing if you claim the garnishment is incorrect.” These sections were also violated
when the Defendants called the Plaintiff and verbally told her that if she did not pay
they would send the account “straight to garnishment.” (Doc. 68 at 13-14, ¶¶14, 18).9

9

Contrary to the Plaintiff’s argument, the admitted facts do not establish a direct threat to
garnish the plaintiff’s Social Security income.
18

Summary judgment will be granted to the Plaintiff, and against all Defendants, as to
Counts Two, Three, and Six, on the issue of liability.
C.

Counts Eight and Nine

The Plaintiff also argues that the Defendants violated section 1692f, which
prohibits a debt collector generally from using “unfair or unconscionable means to
collect or attempt to collect any debt.” The Amended Complaint also alleges a
violation of section 1692f(1), which specifies that
without limiting the general application of [section 1692(f) generally],
the following conduct is a violation of this section: . . . The collection
of any amount (including any interest, fee, charge, or expense incidental
to the principal obligation) unless such amount is expressly authorized
by the agreement creating the debt or permitted by law.
15 U.S.C. § 1692(f)(1). For the reasons previously stated, the November 9, 2013,
letter and the Defendants' verbal communications regarding garnishments violated
these sections. Summary judgment will be granted in favor of the Plaintiff, and
against all Defendants, as to Counts Eight and Nine, on the issue of liability.
D.

Other Counts and Grounds for Relief

The Plaintiff makes no argument in her motion regarding Counts Four, Five,
Seven, and Ten. Summary judgment will be denied as to those counts.
The Plaintiff also argues that the Defendants violated section 1692d. (Doc. 68
at 17, 18). No count in the Second Amended Complaint requests relief under this
19

section. “At the summary judgment stage, the proper procedure for plaintiffs to assert
a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a). A
plaintiff may not amend her complaint through argument in a brief[.]” Gilmour v.
Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Summary judgment,
to the extent that the Plaintiff argues for relief under section 1692d, will be denied.
The Plaintiff also makes an argument for damages. (Doc. 68 at 20-23).
Damages must be resolved at the trial of this matter. Summary judgment will be
denied on that issue. The Plaintiff also makes an argument for attorneys fees and
costs, but notes that she “will submit a separate Application for Attorneys Fees and
Costs.” (Doc. 68 at 24). Accordingly, said request is not yet ripe. Summary judgment
will be denied on that issue.
V.

CONCLUSION
Based on the foregoing, it is hereby ORDERED, ADJUDGED, and

DECREED that the Plaintiff’s motion for summary judgment is GRANTED in part.
Summary judgment, as to liability, is hereby granted in favor of the Plaintiff, and
against all Defendants, as to Counts One, Two, Three, Six, Eight, and Nine. Also,
summary judgment is hereby GRANTED in that it is DETERMINED and the Court
HOLDS that all Defendants are “debt collectors” under the FDCPA, and the Plaintiff

20

is a “consumer” under the FDCPA. In all other respects, the motion for summary
judgment is DENIED.
By separate Order, this case will be set for jury trial.
DONE and ORDERED this 2nd day of March, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

21