Davis v. Nebraska Furniture Mart, Inc. et al

Filing 115

MEMORANDUM AND ORDER granting 58 Motion for Summary Judgment. Signed by District Judge Julie A. Robinson on 7/24/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES T. DAVIS,

)
)
Plaintiff,
)
v.
)
)
)
NEBRASKA FURNITURE MART, INC.,)
EVANS & MULLINIX, P.A., and
)
JO ANN BUTAUD,
)
Defendants.
)
____________________________________)

Case No.11-2559-JAR

MEMORANDUM AND ORDER
Plaintiff James T. Davis brings this lawsuit against the law firm Evans & Mullinix, P.A.
and Jo Ann Butaud, an attorney who is a shareholder and officer of Evans & Mullinix
(collectively “Defendants”), for violation of the Fair Debt Collection Practices Act (“FDCPA”)
and for Abuse of Process.1 This matter is before the Court on Defendants’ Motion for Summary
Judgment (Doc. 58). Plaintiff Davis has responded to the motion, and as explained below,
Defendants’ motion for summary judgment is granted.
I.

Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no

genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.”2 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in

1

After the Court dismissed some claims on Nebraska Furniture Mart’s (NFM) motion to dismiss, Plaintiff
and NFM entered into a Stipulation of Dismissal of the remaining claim against NFM. (Doc. 53).
2

Fed. R. Civ. P. 56(a).

1

the light most favorable to the nonmoving party.3 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”4 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”5 An issue
of fact is “genuine” if “‘the evidence is such that a reasonable jury could return a verdict for the
non-moving party.’”6
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.7 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.8
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”9 The nonmoving party

3

City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

4

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

5

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
6

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
7

Spaulding v. United Trasp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986)).
8

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
9
Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

2

may not simply rest upon her pleadings to satisfy her burden.10 Rather, the nonmoving party
must “set forth specific facts that would be admissible in evidence in the event of trial from
which a rational trier of fact could find for the nonmovant.”11 To accomplish this, the facts
“must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit
incorporated therein.”12 Rule 56(c)(4) provides that opposing affidavits must be made on
personal knowledge and shall set forth such facts as would be admissible in evidence.13 The
non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations
unsupported by specific facts, or speculation.14
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”15 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”16
II.

Uncontroverted Facts
Plaintiff has admitted virtually all of the material facts set forth by Defendants, except for

10

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

11

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
12

Adams, 233 F.3d at 1246.

13

Fed. R. Civ. P. 56(c)(4).

14

Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation

omitted).
15

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

16

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

3

Defendants’ description of some of Plaintiff’s claims. But the description of Plaintiff’s claims is
neither a factual dispute, nor a dispute material to the issues at hand. Plaintiff asserts additional
facts, many of which Defendants do not dispute, except as to their materiality. The following
facts are either uncontroverted, stipulated to, or taken in the light most favorable to Plaintiff.
Nebraska Furniture Mart (“NFM”) issued a line of credit to Plaintiff on or about
October 26, 2007; and Plaintiff purchased furniture and other goods from NFM. Plaintiff later
defaulted on his payments to NFM. Thereafter, NFM engaged Defendant Evans & Mullinix to
collect the debt owed by Plaintiff, and on March 19, 2009, NFM forwarded its file to Defendant
Evans & Mullinix.
Sometime after March 19, 2009, Defendant Jo Ann Butaud sent a demand letter to
Plaintiff, informing him that NFM had declared the balance due and threatening to file suit if
Plaintiff failed to make arrangements to pay. Butaud is an attorney licensed to practice in
Kansas and Missouri and is a shareholder and officer of Evans & Mullinix. On March 27, 2009,
Defendants filed a lawsuit on behalf of NFM against Plaintiff in the District Court of Wyandotte
County, Kansas, to collect amounts owed by Plaintiff to NFM.
On May 20, 2009, a Consent Judgment was entered in favor of NFM in the amount of
$1,987.00, plus costs, prejudgment interest, attorney’s fees, and interest. Immediately after the
hearing on that date, May 20, Plaintiff and Defendants entered into a payment agreement.
Plaintiff agreed to pay $150 by June 17, 2009, another $150 by July 17, 2009, and then to
renegotiate the remaining balance until paid in full. Defendants sent and Plaintiff received a
letter dated May 28, 2009, memorializing this agreement, and advising Plaintiff that if he did not
remit the payments as agreed, Defendants would pursue all further collection remedies for NFM.

4

Plaintiff did not remit payments in the agreed upon amounts, nor upon the agreed
deadlines. Instead, Plaintiff paid $100 on June 24, 2009 and $50 on July 2, 2009. Plaintiff made
both of these payments with his Citibank debit card. The Kansas Department of Labor, through
Citibank, deposited unemployment benefits payments onto this debit card. Plaintiff did not
disclose to Defendants, at that time, that this Citibank debit card was how he received
unemployment benefits from the state.
On September 2, 2009, Defendants filed an Application for Examination of Judgment
Debtor; Judge Grosko approved the application on that same date and issued an Order directing
Plaintiff to appear for a Hearing in Aid of Execution on October 14, 2009. Plaintiff was served
with this Order, and duly appeared at the hearing on October 14, where he was examined under
oath by Defendant Butaud. Plaintiff testified that he was unemployed, that he had little, if any,
property with which to satisfy the judgment, and that he had a debit card from Citibank. Plaintiff
did not testify or otherwise advise Defendant Butaud of the source of the funds in the Citibank
account.
On October 14, 2009, Plaintiff and Defendant Butaud agreed to a new payment plan:
Plaintiff would pay $75 every two weeks, starting on October 28, 2009, until the debt was paid
in full. Defendants sent and Plaintiff received a letter dated October 16, 2009, memorializing
this agreement and again advising Plaintiff that if he did not remit the payments as agreed,
Defendants would pursue all further collection remedies for NFM. Plaintiff did not comply with
the terms of this agreement either. Instead, on November 12, 2009, Plaintiff made a single,
untimely payment of $75 with his Citibank debit card, and then no additional payments until
November 8, 2010.

5

On January 15, 2010, Defendants filed a Request for Garnishment, seeking to attach
funds by Brotherhood Bank; an Order of Garnishment was issued, but eventually released by
Defendants without attaching any funds. Brotherhood Bank reported that it did not hold any of
Plaintiff’s funds in its possession.
On February 9, 2010, Defendants filed a Request for Garnishment to attach funds held by
Citibank; and an Order of Garnishment was issued. On March 4, 2010, Plaintiff filed a Request
for Hearing on the Request for Garnishment of the funds held by Citibank, in which Plaintiff
asserted that the Citibank funds were unemployment benefits and thus exempt from garnishment.
Defendants were previously unaware that Plaintiff was receiving unemployment benefits and
were unaware that the source of the funds on the Citibank account was unemployment benefits.
In fact, Plaintiff had made three payments using the Citibank debit card. On March 17, 2010,
Defendants released the Citibank garnishment. No funds were ever attached from the Citibank
account and Plaintiff received all of the unemployment benefits that were issued to him.
Defendants continued to pursue collection of the debt. On application of Defendants, the
court scheduled a Hearing in Aid of Execution for May 19, 2010. Plaintiff appeared at the
hearing, and testified that although he was still unemployed, he was submitting job applications
and was seriously attempting to find employment. Later, in approximately late July or early
August 2010, Plaintiff in fact began working at Outback Steakhouse and Mutual of Omaha.
Plaintiff did not advise Defendants that he had obtained employment.
On application of Defendants, the court scheduled a third Hearing in Aid of Execution for
July 28, 2010. Although Plaintiff received notice, he did not appear. The court issued a civil
citation for contempt, noting on the docket sheet that Plaintiff “fails to appear for Debtors

6

exam.” At Defendants’ request, the court scheduled the hearing on the Citation to Show Cause
for October 6, 2010. Despite receiving notice, Plaintiff failed to appear at the contempt hearing.
The court ordered the issuance of a bench warrant, noting on the docket sheet that Plaintiff had
failed to appear for the hearing. The court also set a cash bond of $250. It was the court’s
practice to have the judgment creditor prepare the bench warrant under these circumstances.
Defendants did not prepare a bench warrant for the court to issue until on or before January 19,
2011, the date when the court issued the bench warrant.
Between October 6, 2010 and January 19, 2011, Defendants continued to engage in
collection activity. On October 7, 2010, Defendant Butaud sent a letter to Plaintiff advising him
of the order for a bench warrant and advising Plaintiff that Defendants were providing him with
an opportunity to pay the judgment. Plaintiff contacted Defendant Butaud in response to this
letter, and the parties entered into still another agreement for a payment plan. Defendant Butaud
sent and Plaintiff received a letter dated October 18, 2010, which memorialized their agreement,
that the first payment was due November 5, 2010 and on the 5th of each month thereafter until
the debt was paid, and that the first three monthly payments would be in the amount of $100,
then three monthly payments of $125, then $150 monthly payments thereafter. The October 18,
2010 letter warned Plaintiff that “if payments are not received according to this agreement, we
will have no choice but to pursue all further collection remedies for our client. No reminders
will be sent regarding this plan. It is up to you to make timely payments.” Nonetheless, Plaintiff
made only two payments, both of which were untimely, under the agreed payment plan. He
made a payment of $100 on November 8, 2010, and a payment of $100 on January 15, 2011.
On January 19, 2011, the court issued the bench warrant it had ordered on October 6,

7

2010. On January 25, 2011, Wyandotte County Sheriff’s deputies arrested Plaintiff on the
warrant and took him into custody. Plaintiff posted the $250 bond to secure his release from jail
the next day. On February 9, 2011, Plaintiff appeared with counsel from Kansas Legal Services
at a hearing and Judge Grosko ordered the $250 bond forfeited to NFM. A Hearing in Aid of
Execution was held on April 13, 2011. At this hearing, Plaintiff advised Defendants that he had
obtained employment at Outback Steakhouse and Mutual of Omaha. Plaintiff filed the instant
action against Defendants on October 6, 2011.
III. Discussion
Plaintiff brings claims against Defendants under the Fair Debt Collection Practices Act
(“FDCPA”),17 as well as a state law claim for abuse of process. While it is not entirely clear, it
appears that Plaintiff alleges that the entirety of Defendants’ conduct in this case is actionable
under the federal and state law claims. It is also unclear whether Plaintiff has abandoned some
of his claims, as Defendants posit, given the limited scope of Plaintiff’s arguments in his
memorandum in response to Defendants’ motion for summary judgment. Nonetheless, the Court
will address all claims in the Complaint. In essence, Plaintiff claims that Defendants violated the
FDCPA, and committed an abuse of process by: (1) repeatedly causing Plaintiff to be
summonsed to court for examinations in aid of execution, when they had no reason to believe
that he had experienced any change in financial circumstances, and thus for purposes of
harassing Plaintiff; (2) failing to inform the court that after it had ordered the bench warrant,
Defendants had entered into a payment agreement with Plaintiff, and by failing to have the order
to issue bench warrant set aside despite having accepted payments from Plaintiff; (3) preparing

17

15 U.S.C. § 1692.

8

the bench warrant for the court’s issuance despite having accepted payments from Plaintiff; (4)
garnishing the proceeds of Plaintiff’s unemployment benefits in his Citibank debit account; and
(5) instigating the unlawful forfeiture of Plaintiff’s $250 appearance bond to NFM.
A. Fair Debt Collection Practices Act Claim
The purpose of the FDCPA is to “eliminate abusive debt collections practices by debt
collectors,”18 so as to protect consumers from unscrupulous collections. The FDCPA broadly
prohibits unfair or unconscionable collections methods. It prohibits conduct which harasses,
oppresses or abuses any person in connection with the collection of a debt,19 as well as the use of
any false, deceptive or misleading statements or means in connection with the collection of a
debt.20 It prohibits the use of unfair or unconscionable collection practices or methods.21 The
FDCPA is a strict liability statute; thus, a consumer need not show intentional conduct by the
debt collector to be entitled to damages, rather the degree of a debt collector’s culpability may
only be considered in computing the amount of damages.22
Plaintiff claims that Defendants violated the FDCPA by garnishing his Citibank debit
account that contained unemployment benefits, which is exempt property under the law. To be
sure, unemployment benefits are property that is exempt from garnishment under Kansas law.23

18

15 U.S.C. § 1692(e).

19

15 U.S.C. § 1692d.

20

15 U.S.C. § 1692e.

21

15 U.S.C. § 1692f.

22

15 U.S.C. § 1692k(a)(2)(A); Clomon v. Jackson, 988 F.2d 1314, 1321–22 (2nd Cir. 1993).

23
K.S.A. § 60-723(d) (funds, property, credits and indebtedness of the state are exempt from garnishment);
K.S.A. § 60-724(3) (prohibits judgment of garnishment on money or property exempt by law).

9

But the FDCPA proscribes taking nonjudicial action to effect or disable property that is exempt
under the law.24 Here, Defendants took judicial action, not nonjudicial action, in attempting to
garnish Plaintiff’s Citibank debit account.
After the court issued a bench warrant, Defendants and Plaintiff entered into a new
payment arrangement and Defendants accepted payments under the new arrangement. Plaintiff
claims Defendants violated the FDCPA by failing to inform the court of this, and by not taking
action to have the bench warrant set aside on this basis. But Plaintiff misinterprets the basis for
the court’s bench warrant. The court did not issue a bench warrant because Plaintiff defaulted on
payments to Defendants. Rather, the court issued the bench warrant because Plaintiff failed to
appear at a hearing in aid of execution, and then further failed to appear at a hearing on the
court’s order to show cause why Plaintiff had failed to appear at the hearing in aid of execution.
The fact that the parties entered into a payment arrangement was immaterial to the court’s
issuance of the bench warrant for Plaintiff’s failure to appear at two court-ordered hearings.
And, the court’s rules of procedure allow the court to issue a bench warrant upon a party’s
indirect civil contempt of court for failing to appear as ordered.25
Moreover, the fact that Plaintiff and Defendants (repeatedly) entered into payment plans
in consideration of Defendants’ foregoing the use of judicial means to collect the debt, in no way
foreclosed Defendants from using proper judicial means to collect the valid judgment once
Plaintiff failed to abide by the terms of the negotiated payment plan(s). Indeed, on each occasion
that Plaintiff and Defendants reached a payment agreement, Defendants memorialized their

24

15 U.S.C. § 1692f(6)(C).

25
Rule 126–Ex Parte Orders and Contempts, District Court of Wyandotte County, Kansas, 29th Judicial
District, Local Rules, Adopted August 8, 2007.

10

agreement, including language giving Defendants the right to pursue other collection remedies in
the event Plaintiff failed to make the agreed upon payments.
Plaintiff further claims that Defendants violated Sections 1692d, 1692e and 1692f of the
FDCPA26 by repeatedly causing him to be summoned to court for hearings in aid of execution,
and by “instigating” the forfeiture of Plaintiff’s bond to NFM. Section 1692d enumerates six
types of conduct that constitute harassment, oppression or abuse of any person in connection
with the collection of a debt. Plaintiff does not claim that Defendants engaged in any of these
types of conduct: (1) use or threat of use of violence or other criminal means to harm him or his
reputation or property; (2) use of obscene or profane language; (3) publication of his name on a
list of consumers who refuse to pay debt, except to a consumer reporting agency or certain
persons; (4) advertising the debt for sale to coerce his payment of the debt; (5) either causing his
telephone to ring or engaging him or any other person in telephone conversation repeatedly or
continuously with the intent to annoy, abuse or harass; or (6) placement of telephone calls
without meaningful disclosure of the caller’s identity.27 None of the complained-of conduct falls
within the ambit of Section 1692d.
Nor does any of the complained-of conduct fall within the ambit of Section 1692f, which
proscribes eight types of conduct that constitute “unfair or unconscionable means to collect or
attempt to collect any debt.”28 Plaintiff does not allege that Defendants accepted a postdated

26

15 U.S.C. §§ 1692d, 1692e and 1692f.

27

15 U.S.C. § 1692d.

28

15 U.S.C. § 1692f.

11

check from him,29 or deposited or threatened to deposit a postdated check early,30 or solicited a
postdated check from him for purposes of threatening or instituting criminal prosecution.31
Plaintiff does not allege that Defendants communicated with him by post card.32 Nor does
Plaintiff allege that Defendants used any improper language or symbol on communications with
him,33 or that Defendants caused him to incur phone, telegram or other types of charges for
deceptive communications.34
To be sure, under Section 1692f a creditor may not collect any amount that is not
“expressly authorized by the agreement creating the debt or permitted by law.”35 But all of
Defendants’ collection efforts were to collect a valid judgment, and thus its efforts to collect
such amounts were permitted by law. There is simply no evidence that Defendants sought to
collect amounts that were not included in NFM’s valid judgment against Plaintiff. Moreover, all
of Defendants’ efforts to collect NFM’s valid judgment were through judicial means, by motion
or application and court order, and were permitted under various state statutes. As explained in
the analysis of the abuse of process claim below, Defendants’ efforts to collect the judgment by
seeking periodic hearings in aid of execution were permissible under the law, as was the court’s
forfeiture to judgment creditor NFM of Plaintiff’s bond for failure to appear.

29

15 U.S.C. §1692f(2).

30

15 U.S.C. §1692f(4)

31

15 U.S.C. §1692f(3).

32

15 U.S.C. §1692f(7).

33

15 U.S.C.. §1692f(8).

34

15 U.S.C. §1692f(5).

35

15 U.S.C. §1692f(1).

12

B. Abuse of Process Claim
An abuse of process claim is based on the use of the judicial system for some process
other than its intended purpose.36 In Kansas, abuse of process is concerned with process
employed “in a manner not contemplated by law or to obtain an object which said process is not
intended by law to effect.”37 “The gravamen of that tort is not the wrongfulness of the
prosecution, but some extortionate perversion of lawfully initiated process to illegitimate
ends.”38 And, the elements of an abuse of process claim in Kansas are: (1) that the creditor made
an illegal, improper, perverted use of the process—that is a use neither warranted nor authorized
by the process; (2) that the creditor had an ulterior motive or purpose in exercising such use of
the process; and (3) that damage resulted to the Plaintiff from the irregularity.39
Because the Court grants summary judgment on the FDCPA claim, the Court need not
decide the abuse of process claim. The Court has subject matter jurisdiction of the FDCPA
claim, as it arises under a federal statute;40 but the abuse of process claim is one that arises under
state law. Nonetheless, because the abuse of process claim is based on the same conduct as the
FDCPA claim, the Court exercises its discretion to exercise supplemental jurisdiction over the
abuse of process claim;41 and the Court grants summary judgment to Defendants on the abuse of

36

Gatlin v. Hartley, Nicholson 7 Arnett, P.A., 26 P.2d 1284, 1287 (Kan. Ct. App. 2001).

37

Tappen v. Ager, 599 F.2d 376, 380 (10th Cir. 1979) (citation omitted).

38

Heck v. Humphrey, 512 U.S. 477, 486 n.5 (1994) (citations omitted).

39

Porter v. Stormont-Vail Hosp., 621 P.2d 411, 416 (Kan. 1980); Tappen, supra, 599 F.2d at 380;
Restatement (Second) of Torts § 682 cmt.b (1977).
40

28 U.S.C. § 1331.

41

28 U.S.C. § 1367.

13

process claim as well.
Here, Plaintiff’s Complaint alleges that Defendants committed abuse of process by
repeatedly scheduling hearings in aid of execution while knowing that Plaintiff had no change in
economic circumstances, and seeking a bond of $250, which was subsequently “unlawfully
forfeited” to NFM. Plaintiff alleges that Defendants engaged in illegal or improper use of
process for the purpose of harassing or causing hardship to Plaintiff. The gravamen of Plaintiff’s
Complaint is that Defendants wrongfully scheduled repeated hearings in aid of execution when
Defendants knew he was unemployed or did not have the financial means to pay the debt. But,
Plaintiff’s Complaint does not state a perversion of the process. It is undisputed that Plaintiff
defaulted on his debt to NFM, that NFM obtained an enforceable judgment, and that in the
process of collecting the debt, Defendants utilized legitimate court procedures, including
hearings in aid of execution and garnishments, and when Plaintiff failed to appear for hearings, a
citation in contempt and ultimately a bench warrant to assure Plaintiff’s appearance at a hearing
in aid of execution. Indeed, Judge Grosko ordered these procedures upon motion or application
of Defendants. These are all legitimate court processes a creditor may use to collect a debt.
And, Defendants employed these processes for a legitimate end, collection of NFM’s judgment.
Plaintiff’s objection to the repeated scheduling of hearings in aid of execution is
inapposite. First, a creditor can legitimately schedule more than one hearing in aid of execution,
particularly to find out if a debtor’s status has changed such that he is able to pay. In this case,
there is no evidence that Defendants scheduled hearings despite knowing that Plaintiff’s
circumstances were static. On the contrary, in May and October 2009, Plaintiff entered into
payment agreements with Defendants, never advising them that his source of funds was

14

unemployment benefits. In May 2010, at another hearing in aid of execution, Plaintiff advised
Defendants that he was still unemployed but vigorously looking for work. Defendants took no
additional action to collect the judgment until late July 2010; but Defendants were not able to
examine Plaintiff for he did not appear at the hearing on July 28, 2010. Notably, by that time,
Plaintiff had secured two jobs. When Plaintiff again failed to appear at another hearing on
October 6, 2010, Defendants contacted Plaintiff and they entered into still another repayment
plan, upon which Plaintiff soon defaulted. Finally, after giving Plaintiff three months to comply
with this newly-negotiated payment plan, Defendants sought service of the bench warrant.
In all, Defendants scheduled three hearings in aid of execution from October 2009 to July
2010; Plaintiff appeared at the first two but not the July 2010 hearing. By the time Plaintiff was
arrested on the bench warrant in January 2011, after having failed to appear at a hearing in aid of
execution and at a hearing on a contempt citation, Defendants had been trying to collect the
judgment since October 2009, some 27 months. They attempted to garnish Brotherhood Bank;
but it had no funds. They attempted to garnish Citibank; Plaintiff filed a response for the first
time advising Defendants that those funds were exempt unemployment benefits, although he had
made several payments from that account. In response to Plaintiff’s filing, Defendants promptly
released the garnishment; and Plaintiff cannot show that he was damaged because Defendants
never obtained any of the exempt funds.
Moreover, with respect to a claim that Defendants improperly sought service of the bench
warrant on Plaintiff, there is no evidence raising a material issue of fact that service of the bench
warrant was improper, given Plaintiff’s failure to appear at both the hearing in aid of execution
and at the contempt hearing. To be sure, Plaintiff claims damage, having been incarcerated for a

15

day until he posted the bond, but that was a consequence of Plaintiff’s failure to appear at two
hearings ordered by the court. The contempt citation for failure to appear at the hearing in aid of
execution was proper under the law;42 and upon the Plaintiff’s failure to appear at the contempt
hearing, the bench warrant was warranted, authorized and proper.43
In all respects, Defendants employed proper process in seeking to collect NFM’s
judgment. Plaintiff essentially claims that Defendants engaged in abuse of process through
aggressive use of court procedures. But, a claim based on aggressive use of proper procedures
will not lie. In Porter v. Stormont-Vail Hospital, the Kansas Supreme Court held that a claim for
abuse of process will not lie based on post-judgment collection procedures the plaintiff contends
were harassing or abusive, but which conform to statutory procedures.44 Moreover, given the
prolonged period in which Defendants attempted to collect the debt, their repeated negotiations
of new payment plans in the face of Plaintiff’s repeated defaults, Defendants collection efforts
could hardly be characterized as abusive, much less aggressive.
Conclusion
For the above-stated reasons, Defendants’ motion for summary judgment is granted.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion for
Summary Judgment (Doc. 58) is GRANTED.
IT IS SO ORDERED.
Dated: July 24, 2013

42

K.S.A. § 61-3606.

43

K.S.A. § 61-3608.

44

612 P.2d at 416–17.

16

S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

17