Balti v. CACH LLC et al

Filing 26

ORDER denying 19 Motion for summary judgment. 21 Motion is granted. The Clerk is directed to change the address of Defendant in this case to Taylor Law, PLLC, c/o Gregory Taylor and Michael V. Brodarick, P.O. Box 12200, Louisville, KY 40223 and to mail a copy of this order to this address. Signed by Judge James M. Moody Jr. on 3/29/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
JACQUELINE BALTI
V.

PLAINTIFF
CASE NO. 3:16-CV-00323-JM

TAYLOR LAW, PLLC, and
MELISSA MARQUEZ

DEFENDANTS
ORDER

Pending is Plaintiff’s motion for summary judgment against Taylor Law PLLC
(“Taylor”) (Doc. No. 19). The time for response has passed, and Taylor did not file a response to
the motion. For the reasons stated below, that motion is DENIED.
Summary Judgment Standard
The Eighth Circuit Court of Appeals has cautioned that summary judgment should be
invoked carefully so that no person will be improperly deprived of a trial of disputed factual
issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979), cert. denied,
444 U.S. 991 (1979). The Eighth Circuit set out the burden of the parties in connection with a
summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is only to
demonstrate, i.e., >[to] point out to the District Court,= that the
record does not disclose a genuine dispute on a material fact. It is
enough for the movant to bring up the fact that the record does not
contain such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is discharged,
and, if the record in fact bears out the claim that no genuine dispute
exists on any material fact, it is then the respondent=s burden to set

forth affirmative evidence, specific facts, showing that there is a
genuine dispute on that issue. If the respondent fails to carry that
burden, summary judgment should be granted.
Id. at 1339 (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-274 (8th
Cir. 1988)) (citations omitted). Only disputes over facts that may affect the outcome of the suit
under governing law will properly preclude the entry of summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
Analysis
Plaintiff alleges that Taylor violated the Fair Debt Collection Practices Act, 15 U.S.C. §
1692 et seq. (“FDCPA”), specifically the following three provisions:
A debt collector may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt. Without limiting the general
application of the foregoing, the following conduct is a violation of this section:
...
(2) The false representation of-(A) the character, amount, or legal status of any debt
...
(10) The use of any false representation or deceptive means to collect or attempt
to collect any debt or to obtain information concerning a consumer.
...
(12) The false representation or implication that accounts have been turned over
to innocent purchasers for value
15 U.S.C.A. § 1692e(2), (10), and (12). (West).
Assuming without deciding that Plaintiff has established that she is a consumer as
defined by the FDCPA, that the debt arose out of transactions that are primarily for household
purposes, and that Taylor is a debt collector as defined by the FDCPA, Plaintiff must still prove
that there is no genuine dispute of material fact that Taylor violated the provisions of §1692e. In
support of her claim that Taylor violated § 1692e(2), making a misleading misrepresentation of
the amount of a debt owed, Plaintiff relies on an increase in the amount of debt she allegedly
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owed. In a lawsuit filed in state court by CACH, LLC (“CACH”), that debt collector made a
sworn statement that the amount of the debt owed to it as assignee of the original creditor was
$1,812.18. That lawsuit was dismissed without prejudice on CACH’s motion. After that lawsuit
was dismissed, Taylor sent Plaintiff a letter that it was collecting on the same debt on behalf of
CACH but for the amount of $1,955.18. Plaintiff relies on the differences in these amounts
sought as proof that a violation of the FDCPA occurred. The certificate of assignment attached
as an exhibit to the state court complaint was dated November 18, 2013, and gave a current
balance due of “$1,812.18 plus any accrued interest.” The correspondence from Taylor after the
lawsuit was dismissed was dated November 3, 2015 and gave the current balance as $1,955.18.
There is no indication that any interest chargeable under the terms of the underlying credit
agreement would have stopped accruing, and Plaintiff has not proven that the challenged
correspondence was materially false or misleading. The bare fact that the amount sought by
CACH in the state court action is different than the amount sought by Taylor on CACH’s behalf
in subsequent correspondence does not prove that Taylor committed a violation of §1692e(2).
In support of her claim that Taylor violated § 1692e(10) and (12) by making false
representations to collect the debt, Plaintiff asserts that Taylor attempted to collect upon the debt
“without a clear chain of title.” Plaintiff claims that the original creditor, GE Money Retail
Bank, has never existed. She bases this argument on her assertion that an internet search upon
the FDIC website shows that it does not insure the deposits of GE Money Retail Bank and her
unsupported assertion that the Office of the Comptroller of the Currency has never issued a
charter to GE Money Retail Bank. Plaintiff has not offered any admissible evidence proving that
GE Money Retail Bank was a “phony entity” as alleged, and her assertions on this claim are
insufficient to prove that Taylor violated the FDCPA.

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In the absence of proof that Taylor violated the FDCPA, Plaintiff’s motion for summary
judgment is denied.

Motion to Withdraw
Also pending is the motion of David Donovan and the law firm of Watts, Donovan &
Tilley, P.A. requesting to be relieved as counsel for Taylor. (Document No. 21). That motion is
GRANTED. However, Taylor may not appear in federal court without legal representation. See
United States v. Van Stelton, 988 F.2d 70 (8th Cir. 1993) (per curiam). AIt has been the law for the
better part of two centuries . . . that a corporation may appear in the federal courts only through
licensed counsel.@ Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506
U.S. 194, 201-202, 113 S.Ct. 716, 721 (U.S. 1993) (citations omitted). Therefore, while the case
may proceed against Taylor, it will not be able to participate in the proceedings and defend itself
unless new counsel enters an appearance on its behalf.
Conclusion
For the reasons stated above, Plaintiff’s motion for summary judgment against Taylor
(Doc. No. 19) is DENIED. The motion of David Donovan and the law firm of Watts, Donovan
& Tilley, P.A. requesting to be relieved as counsel for Taylor (Document No. 21) is GRANTED.
The Clerk is directed to change the address of Defendant in this case to Taylor Law, PLLC c/o
Gregory Taylor and Michael V. Brodarick, P.O. Box 12200, Louisville, KY 40223 and to mail a
copy of this order to this address.
IT IS SO ORDERED this 29th day of March, 2018.

________________________________
James M. Moody Jr.
United States District Judge

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