White vs. Josh McHughes, et al

Filing 86

ORDER granting 58 Motion for Summary Judgment. Plaintiffs complaint as stated against Josh E. McHughes, Becky A. McHughes, The McHughes Law Firm, LLC, and Cavalry Portfolio Services, LLC is dismissed. Signed by Honorable Jimm Larry Hendren on October 12, 2011. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DONALD E. WHITE and
AUSTA M. WHITE

PLAINTIFFS

v.

Civil No. 10-5032

JOSH McHUGHES, ET AL.

DEFENDANTS
ORDER

NOW on this 12th day of October, 2011, the above referenced
matter comes on for this Court’s consideration of Defendants’
Motion

for

Summary

Judgment

with

Brief

in

Support

Thereof

(document #58), filed by separate defendants Josh E. McHughes,
Becky

A. McHughes,

The

Portfolio Services, LLC.

McHughes

Law

Firm,

LLC,

and Cavalry

The Court, being well and sufficiently

advised, finds and orders as follows:
1.
2010.

The plaintiffs commenced this action on February 16,
Plaintiffs’ third amended complaint (document #52) was

filed on March 4, 2011 and asserts the following claims:
*

Count 1 asserts a claim under 15 U.S.C. § 1692g against

Josh McHughes, Becky McHughes, and the McHughes Law Firm LLC
(hereinafter the “McHughes defendants”).

Plaintiffs claim the

McHughes defendants violated 15 U.S.C. § 1692g by failing to
respond to plaintiffs’ dispute letter which plaintiffs mailed on
June 3, 2008.
*

Count 2 asserts a claim under 15 U.S.C. § 1692g against

Cavalry Portfolio Services, LLC (hereinafter “Cavalry”).

*

Count 3 asserts a claim under 15 U.S.C. § 1681n against

Ally Financial Services f/k/a GMAC Inc. d/b/a GMAC Financial
Services (hereinafter “Ally”).

Plaintiffs claim Ally violated 15

U.S.C. § 1681n by failing to validate the alleged Ally debt after
plaintiffs requested such validation on February 24, 2006.
*

Count 4 asserts a claim under 15 U.S.C. § 1681o against

Ally. Plaintiffs claim Ally violated 15 U.S.C. § 1681o by failing
to validate the alleged debt after plaintiffs requested such
validation on March 30, 2004.
2.

The instant motion for summary judgment asserts that the

separate defendants are entitled to summary judgment with respect
to all claims against Josh E. McHughes, Becky A. McHughes, The
McHughes Law Firm, LLC, and Cavalry Portfolio Services, LLC.

The

plaintiffs

for

have

responded

and

the

motion

is

now

ripe

consideration.
3.

The standard to be applied to a motion for summary

judgment is set forth in Rule 56 of the Federal Rules of Civil
Procedure and provides for the entry of summary judgment on a
claim
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 judgment as a matter of law.
F.R.Civ.P. 56(c); see also Carroll v. Pfeffer, 262 F.3d 847 (8th
Cir. 2001); Barge v. Anheuser-Busch, Inc., 87 F.3d 256 (8th Cir.

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1996).

Summary judgment is to be granted only where the evidence

is such that no reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). Accordingly, all evidence must be viewed in the light
“most favorable to the non-moving party.”

F.D.I.C. v. Bell, 106

F.3d 258, 263 (8th Cir. 1997); see also Bailey v. United States
Postal Service, 208 F.3d 652, 654 (8th Cir. 2000).
Where a movant makes and properly supports a motion for
summary

judgment,

the

opposing

party

may

not

rest

upon the

allegations or denials of its pleadings; rather, the non-movant
must "set forth specific facts showing that there is a genuine
issue for trial." Liberty Lobby, 477 U.S. at 256.

The non-moving

party must "make a sufficient showing on every essential element
of its case for which it has the burden of proof at trial."
Wilson v.

Southwestern Bell Tel.

Co., 55 F.3d 399, 405 (8th Cir.

1995).
4.

For the purpose of considering the motion for summary

judgment and based upon the pleadings submitted by the parties,
the Court believes the following material undisputed facts appear:
*

The McHughes defendants responded to plaintiffs’ request

for verification dated June 3, 2008 on June 16, 2008 by mailing
the verification of the debt to the plaintiffs’ address of 75
Davis Circle, Bella Vista, Arkansas.
*

Cavalry sent letters to the plaintiffs concerning the

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debt on January 15, 2008 and February 22, 2008.

Although the

plaintiffs never requested verification from Cavalry, the McHughes
defendants, as counsel for Cavalry, mailed verification of the
debt on June 16, 2008.
*

The verification mailed on June 16, 2008 was properly

addressed to the plaintiffs.
5.

The instant

defendants

argue

that

summary judgment

should be granted with respect to the claims against them because
they did respond to the plaintiffs’ request for verification of
the debt at issue.

The defendants also argue that summary

judgment should be granted because the claims were initiated
outside the appropriate statute of limitations.
6.

The plaintiffs’ claims against the McHughes defendants

and Cavalry are brought pursuant 15 U.S.C. § 1692g(b) – which is
part of the Fair Debt Collection Practices Act (hereinafter
“FDCPA”). The FDCPA provides a remedy for consumers who have been
subjected to unfair debt collection practices.

Specifically, 15

U.S.C. § 1692g states that:
If the consumer notifies the debt collector in writing
within the thirty-day period described in subsection (a)
of this section that the debt, or any portion thereof,
is disputed, or that the consumer requests the name and
address of the original creditor, the debt collector
shall cease collection of the debt, or any disputed
portion thereof, until the debt collector obtains
verification of the debt or a copy of a judgment, or the
name and address of the original creditor, and a copy of
such verification or judgment, or name and address of
the original creditor, is mailed to the consumer by the
debt collector. . . .
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15 U.S.C. § 1692g(b).
It is undisputed that on or about June 3, 2008 plaintiffs
sent “a certified dispute letter” to the McHughes Law Firm, LLC.
However it is also undisputed that on June 16, 2008, the McHughes
defendants and Cavalry replied to plaintiffs’ dispute by mailing
sufficient
Although

verification
the

plaintiffs

pursuant
claim

to

to

15

have

U.S.C.
never

§

1692g(b).

received

the

verification, “[u]nder the common law Mailbox Rule, ‘proper and
timely mailing of a document raises a rebuttable presumption that
it is received by the addressee.’” Mahon v. Credit Bureau of
Placer County Inc., 171 F.3d 1197, 1202 (9th Cir. 1999)(applying
the “Mailbox Rule” in the context of § 1692g(b)).

The plaintiffs

have presented no evidence which rebuts that presumption.
7.

Viewing the evidence in the light most favorable to the

plaintiffs, the undisputed facts show that no reasonable jury
could return a verdict for the plaintiffs. Therefore, the instant
motion should be granted and the plaintiffs complaint as asserted
against the McHughes defendants and Cavalry should be dismissed.1
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary

1
The plaintiffs appear to include newly raised claims in both their responses to
the motions for summary judgment and their motions for summary judgment.
Neither
plaintiffs’ asserted statute of limitations defense - which only arguably applies to a
related case and not the instant one – nor the newly asserted claims are proper for
consideration in the instant motions for summary judgment. See Rodgers v. City of Des
Moines, 435 F.3d 904, 910 (8th Cir. 2006). See also Northern States Power Co. v. Federal
Transit Admin., 358 F.3d 1050, 1057 (“[W]hile we recognize that the pleading
requirements under the Federal Rules are relatively permissive, they do not entitled
parties to manufacture claims, which were not pled, late into the litigation for the
purpose of avoiding summary judgment.”).

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Judgment with Brief in Support Thereof (document #58) is granted.
IT IS FURTHER ORDERED that plaintiffs’ complaint as stated
against Josh E. McHughes, Becky A. McHughes, The McHughes Law
Firm, LLC, and Cavalry Portfolio Services, LLC is dismissed.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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