Salaimeh v. Messerli & Kramer, P.A. et al
Filing
42
ORDER granting 26 Motion for Summary Judgment; denying as moot 26 Motion to Compel (Written Opinion). Signed by Senior Judge David S. Doty on 11/25/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-3201(DSD/HB)
Ameera Salaimeh,
Plaintiff,
ORDER
v.
Messerli & Kramer, P.A., a
domestic professional association
and RAB Performance Recoveries, LLC,
a foreign limited liability company,
Defendants.
Marcus J. Hinnenthal, Esq., Patrick L. Hayes, Esq. and
Marso & Michelson, PA, 3101 Irving Avenue South,
Minneapolis, MN 55408.
Derrick N. Weber, Esq., Bradley R. Armstrong, Esq. and
Messerli & Kramer PA, 3033 Campus Drive, Suite 250,
Plymouth, MN 55441.
This matter is before the court upon the motions for summary
judgment and to compel discovery by defendants Messerli & Kramer
(M&K) and RAB Performance Recoveries, LLC (RAB). Based on a review
of the file, record, and proceedings herein, and for the following
reasons, the court grants the motion for summary judgment and
denies as moot the motion to compel discovery.
BACKGROUND
This debt-collection dispute arises out of actions taken by
M&K and non-party TCF Bank National, Inc. (TCF Bank), regarding a
consumer debt incurred by plaintiff Ameera Salaimeh. Salaimeh held
a credit account with FIA Card Services, LLC (FIA).
Salaimeh Dep.
at 29:19-25.
At some point before January 20, 2011, she failed to
make payments on the account.
Ex. 1.
Id. at 30:21-31:3; Armstrong Decl.
First Resolution Investment Corp. (First Resolution)
acquired the delinquent debt from FIA and retained M&K to collect
on the debt.
Armstrong Decl. ¶ 4.
M&K, acting on behalf of First
Resolution, filed an action against Salaimeh in Anoka County
District Court on August 30, 2010.
answer the complaint.
in
the
amount
Resolution.
of
Id.
Id. ¶ 6.
Salaimeh failed to
On January 20, 2011, a money judgment
$12,611.20
was
entered
in
favor
of
First
Id. Ex. 1.
Salaimeh maintained a checking account with TCF Bank. Id. Ex.
10, at 5.
To enforce the judgment, M&K served a garnishment
summons and two copies of an exemption notice and disclosure form
on TCF Bank on August 13, 2013.
Id. Ex. 2.
Around August 20,
2013, TCF Bank withdrew $890.03 from Salaimeh’s account and levied
a $125.00 garnishment fee.
Id. Ex. 10, at 5.
Salaimeh discovered
that her account had been garnished when her debit card was
declined while shopping.
Salaimeh Dep. at 41:21-25.
Her husband
contacted TCF Bank and was told that the funds were being garnished
by M&K.
Salaimeh Dep. 41:24-43:1; Salaimeh Aff. ¶ 6.
On August 22, 2013, Salaimeh sent M&K a generic exemption
form, which she obtained online, claiming that all of her garnished
2
funds were exempt.1
Salaimeh Aff. ¶ 5 & Ex.
As a consequence of
her funds being garnished, Salaimeh alleges that she incurred
overdraft fees, fell behind in monthly payments, and had checks
refused by various retailers and grocery stores.
Compl. ¶¶ 26-31.
First Resolution did not object to Salaimeh’s claimed exemptions.
Armstrong Aff. ¶ 12.
At some point before September 13, 2013, TCF Bank mistakenly
sent Salaimeh a second exemption form, relating to a debt that she
did not owe.
Salaimeh Dep. at 46:3-4; Salaimeh Aff. Ex. 2.
The
caption on the form listed defendant RAB as the creditor, Ann M.
Schultenover
as
the
Salaimeh Aff. Ex. 2.
¶ 5.
debtor,
and
TCF
Bank
as
RAB is also a client of M&K.
the
garnishee.
Armstrong Aff.
Although the case caption indicated that it did not pertain
to her, Salaimeh completed the form and sent it to M&K on September
19, 2013.
Salaimeh Aff. Ex. 2, at 3.
the form.
She listed her address on
Id.
When M&K received the second exemption form, it mistakenly
updated the address for Schultenover to reflect the address that
Salaimeh provided.
Armstrong Aff. ¶ 14.
M&K, on behalf of its
client RAB, then objected to the claimed exemption as it related to
Schultenover’s debt. Id. M&K sent Salaimeh a Creditor’s Notice of
Objection and Notice of Hearing on Exemption Claim (Notice).
1
Because First Resolution was represented by M&K, Salaimeh
was not required to send the exemption claim to First Resolution.
See Minn. Stat. § 571.913.
3
Armstrong
Aff.
Schultenover’s
Ex.
case
6.
and
The
Notice
listed
contained
Schultenover
a
as
Salaimeh Dep. at 48:21-49:5; Salaimeh Aff. Ex. 3.
caption
the
for
debtor.
Although these
documents were mistakenly mailed to Salaimeh, Salaimeh’s account
was not further garnished because of Schultenover’s debt.
Salaimeh filed a complaint on November 21, 2013, alleging
(1) violations of the Fair Debt Collection Practices Act (FDCPA),
(2) wrongful garnishment, (3) conversion, (4) abuse of process, and
(5) negligence.2
M&K instructed TCF Bank to release Salaimeh’s
garnished funds back to her after she commenced this action.
Armstrong Aff. ¶ 18.
Defendants now move for summary judgment.
DISCUSSION
I.
Standard of Review
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
2
Salaimeh did not address her state law claims or her FDCPA
claims under 15 U.S.C. §§ 1692d and 1692i when opposing this
motion. Although the court considers those claims, it notes that
they have been effectively waived. See Satcher v. Univ. of Ark. at
Pine Bluff Bd. Of Trs., 558 F.3d 731, 735 (8th Cir. 2009)
(“[F]ailure to oppose a basis for summary judgment constitutes
waiver of that argument.”).
4
(1986).
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
Id.
at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
Id. at 255.
The nonmoving party, however, may not rest upon mere
denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.
Celotex, 477
A party asserting that a genuine dispute exists - or
cannot exist - about a material fact must cite “particular parts of
materials in the record.”
Fed R. Civ. P. 56(c)(1)(A).
If a
plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
facts immaterial.
II.
Celotex, 477 U.S. at 322-23.
FDCPA Claims
Congress enacted the FDCPA to protect consumers “in response
to abusive, deceptive, and unfair debt collection practices.”
Schmitt v. FMA Alliance, Ltd., 398 F.3d 995, 997 (8th Cir. 2005).
“A
violation
of
the
FDCPA
is
reviewed
utilizing
the
unsophisticated-consumer standard which ... protects the uninformed
or naive consumer, yet also contains an objective element of
reasonableness
to
protect
debt
collectors
from
liability
peculiar interpretations of collection [attempts].”
5
for
Strand v.
Diversified Collection Serv., Inc., 380 F.3d 316, 317-18 (8th Cir.
2004) (citations and internal quotation marks omitted).
“The
unsophisticated consumer test is a practical one, and statements
that are merely susceptible of an ingenious misreading do not
violate the FDCPA.”
Peters v. Gen. Serv. Bureau, Inc., 277 F.3d
1051, 1056 (8th Cir. 2002) (citation and internal quotation marks
omitted).
A.
Section 1692e
Salaimeh first argues that defendants violated §§ 1692e and
1692e(10)
of
the
FDCPA
Schultenover’s debt.
by
sending
her
documents
related
to
Section 1692e(10) prohibits a debt collector
from using “any false representation or deceptive means to collect
or attempt to collect any debt or to obtain information concerning
a consumer.”
Salaimeh argues that defendants are liable under
§ 1692e because they failed to prevent TCF Bank from sending her an
exemption form pertaining to Schultenover and, after she submitted
that
form
to
M&K,
they
sent
her
RAB’s
notice
of
objection.
Salaimeh alleges that she believed her account was being garnished
for Schultenover’s debt.
There is no dispute that the documents received by Salaimeh
contained
inaccuracies.
Although
the
statements
and
other
information within the documents pertained to Schultenover, the
documents listed Salaimeh’s address as the debtor’s address.
The
court finds, however, that these inaccuracies do not rise to the
6
level of a “false representation” that is actionable under § 1692e.
For a representation to be actionable, it must be both false and
material.
Neill v. Bullseye Collection Agency, Inc., No. 08-5800,
2009 WL 1386155, at *2 (D. Minn. May 14, 2009); see also Warren v.
Sessoms & Rogers, P.A., 676 F.3d 365, 374 (4th Cir. 2012) (noting
that “courts have generally held that [FDCPA] violations grounded
in ‘false representations’ must rest on material representations”
and collecting cases from Sixth, Seventh, and Ninth Circuits).
Representations
are
material
if
they
“frustrate
a
consumer’s
ability to intelligently choose his or her response.”
Donohue v.
Quick Collect, Inc., 592 F.3d 1027, 1034 (9th Cir. 2010) (citing
Hahn v. Triumph P’ships LLC, 557 F.3d 755, 757 (7th Cir. 2010)).
Salaimeh fails to explain how these documents, which plainly
listed Schultenover as a debtor, prevented her from responding with
regards to her own debt.
Indeed, by the time Salaimeh received
these documents, she had already responded to her own garnishment
by sending M&K a generic exemption form.
Although Salaimeh was
understandably confused as to why her funds had not yet been
returned
to
her
at
that
time,
her
interpretation
of
the
Schultenover documents - that they pertained to her even though
they referenced another individual - is peculiar and unreasonable
under the unsophisticated consumer standard.
See David v. FMS
Servs., 475 F. Supp. 2d 447, 449 (S.D.N.Y. 2007) (finding no
violation of § 1692e where a debt collection notice for another
7
individual was sent to the plaintiff’s address).
As a result,
summary judgment is warranted on Salaimeh’s § 1692e claim.
B.
Section 1692f
Salaimeh next argues that defendants violated § 1692f, which
prohibits debt collectors from using “unfair or unconscionable
means to collect or attempt to collect any debt.”
Included among
such means is an attempt to collect an amount “unless such amount
is expressly authorized by the agreement creating the debt or
permitted by law.”
15 U.S.C. § 1692f(1).3
“A violation of
§ 1692f(1) can be premised on a violation of either a Minnesota
statute or common law.”
Backlund v. Messerli & Kramer, P.A., Civ.
No. 12-808, 2012 WL 3582963, at *5 (D. Minn. Aug. 17, 2012)
(citation and internal quotation marks omitted).
Salaimeh first claims that M&K violated state law when it
failed to direct TCF Bank to return her funds, even though it knew
that First Resolution did not object to her claimed exemptions.
Defendants
respond
that
only
the
financial
institution
as
garnishee, but not the debt collector or creditor, is obligated to
3
As an initial matter, Salaimeh’s § 1692f(1) claim fails to
the extent she argues that the amount M&K sought to collect on was
not permitted by law. See Compl. ¶ 33. The record shows that M&K
was enforcing a valid judgment.
Armstrong Aff. Ex. 1. Summary
judgment is also warranted to the extent the § 1692f claim is
premised on the conduct underlying her other FDCPA claims. See
Baker v. Allstate Fin. Servs., Inc., 554 F. Supp. 2d 945, 953 (D.
Minn. 2008) (“Cognizant that it could not anticipate every sharp
practice by debt collectors, Congress enacted Section 1692f to
catch conduct not otherwise covered by the FDCPA.”).
8
return funds that are claimed exempt.
The court agrees.
Under
Minnesota garnishment law, if a creditor does not object to a
claimed exemption, any garnished funds must be released “six
business days after the date postmarked on the envelope containing
the executed exemption notice mailed to the financial institution.”
Minn. Stat. § 571.913.
This language - focusing on the notice
received by the financial institution - does not demonstrate an
intent to create a duty on the part of the debt collector.
In the
absence of authority indicating otherwise, the court will not read
such a duty into the statute.
Moreover,
Salaimeh
does
not
point
to
any
authority
establishing liability under § 1692f for the unlawful retention,
rather than collection, of funds.
The court has consistently held
that a failure to return garnished funds is not actionable under
§ 1692f.
See Backlund, 2012 WL 3582963, at *5; see also Reeves v.
Messerli & Kramer, P.A., No. 11-cv-729, 2012 WL 926063, at *4 (D.
Minn. Mar. 16, 2012) (stating that “[e]ven if § 1692f applies to
retention as well as collection of funds,” the particular retention
in question was not “unfair or unconscionable” activity prohibited
by § 1692f).
Salaimeh next claims that M&K violated Minnesota law because
she did not receive the garnishment summons and exemption notice
relating to her debt.
See Minn. Stat. § 571.72, subd. 4, 8
(requiring a garnishment summons and exemption notice to “be served
9
by mail at the last known mailing address of the debtor”); see also
Backlund, 2012 WL 3582963, at *5 (recognizing a § 1692f claim where
a debt collector failed to send notice of a garnishment summons).
Section
571.72,
however,
provides
that
“[s]ervice
of
the
garnishment documents on the debtor is effective upon mailing.”
Minn Stat. § 571.72, subd. 4.
The record supports a finding that
M&K mailed the documents to Salaimeh.
See Weber Decl. ¶¶ 6-8.
As
such, defendants cannot be charged with Salaimeh’s claimed lack of
receipt.
Nor
otherwise
does
the
unfair
court
or
find
that
unconscionable
defendants’
as
required
actions
by
§
were
1692f.
Defendants’ conduct does not fall within the prohibited conduct
enumerated in § 1692f.
See § 1692f(1)-(8) (prohibiting collecting
more money than expressly authorized, accepting or soliciting
postdated
checks,
threatening
criminal
prosecution,
causing
consumer to incur collect call or telegram charges, threatening
unauthorized nonjudicial action, and communicating by postcard).
The court also finds that the alleged conduct in the present matter
- sending incorrect documentation and not directing the release of
exempt funds when there was no duty to do so - is less severe than
the enumerated conduct. As a result, summary judgment is warranted
on Salaimeh’s § 1692f claim.4
4
As noted, Salaimeh did not address her claims under §§ 1692d
and 1692i.
Salaimeh alleges in her complaint that defendants
(continued...)
10
III.
State Law Claims
A.
Wrongful Garnishment
Salaimeh
next
argues
that
defendants
violated
Minnesota
Statutes § 571.90. Defendants respond that this provision does not
apply to debt collectors. The court agrees. The statute provides,
in relevant part:
Any action by a creditor made in bad faith and
in violation of [Chapter 571] renders the
garnishment void and the creditor liable to
the debtor named in the garnishment ....
Minn. Stat. § 571.90.
A “creditor” is defined as “the party who
has a claim for the recovery of money ... and who is issuing or
requesting the issuance of the garnishment summons.”
Minn. Stat.
§ 571.712, subd. 2(a). A “claim” is defined as “the unpaid balance
of the creditor’s judgment against the debtor.”
Id. § 571.712,
subd. 2(d). Salaimeh’s judgment creditor was First Resolution, not
4
(...continued)
violated § 1692i by setting a hearing on RAB’s objections to her
claimed exemptions in Hennepin rather than Anoka county. Compl.
¶ 36.
A debt collector may only bring a legal action in the
judicial district in which the debtor resides.
15 U.S.C.
§ 1692i(a)(2)(B). The hearing at issue here, however, pertained to
Schultenover rather than Salaimeh and as such was not a legal
action brought against her.
Further, § 1692d prohibits “any
conduct the natural consequence of which is to harass, oppress, or
abuse any person in connection with the collection of a debt.”
Salaimeh does not allege that defendants’ conduct fits within the
enumerated examples under § 1692d. Rather, she argues that the
conduct underlying her other FDCPA claims also constitutes a
violation of § 1692d.
Compl. ¶¶ 32-35.
The court finds as a
matter of law that this conduct does not rise to the level of
harassment, oppression, or abuse actionable under § 1692d.
11
M&K or RAB.5
As a result, summary judgment is warranted on the
wrongful garnishment claim.
B.
Conversion
Salaimeh next argues that defendants are liable for conversion
because
M&K
Conversion
failed
is
“an
to
act
direct
of
TCF
willful
Bank
to
return
interference
her
with
funds.
personal
property, done without lawful justification by which any person
entitled thereto is deprived of use and possession.”
Russ, 566
N.W.2d
60, 71
quotation marks omitted).
wrongful levy.
(Minn.
1997)
(citation
DLH, Inc. v.
and
internal
A conversion claim may be premised on
See Reeves, 2012 WL 926063, at *2.
Defendants respond that TCF Bank was solely responsible for
failing to return Salaimeh’s funds.
The court agrees.
In support
of her conversion claim, Salaimeh points to a file maintained by
M&K, indicating that M&K believed her funds could not be released
by TCF Bank unless she submitted statements showing the source of
the funds.
See Hayes Aff. Ex. 1, at 4.
Salaimeh does not offer,
however, any evidence that defendants actually directed TCF Bank
5
Although the complaint indicates that this claim is brought
against RAB, which is a creditor, RAB was not involved in any way
with Salaimeh’s garnishment and as such cannot be held liable.
Indeed, the only apparent connection RAB has to this action is that
it was the creditor for Schultenover and was listed as such on the
documents mistakenly mailed to Salaimeh.
12
not to release the funds or that defendants interfered with the
release in any way.
As a result, summary judgment is warranted on
the conversion claim.
C.
Abuse of Process
Salaimeh next argues that defendants are liable for abuse of
process.
To prove abuse of process, Salaimeh must show that there
was an ulterior purpose and that defendants used the garnishment
proceedings to achieve something not within the scope of the
proceedings.
Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn. Ct.
App. 1997). Salaimeh fails to present any evidence that defendants
acted with an ulterior purpose.
The record shows that M&K used the
garnishment proceedings to collect on an unpaid judgment, not to
“accomplish an end other than that which the process was designed
to accomplish.”
Pow-Bel Constr. Corp. v. Gondek, 192 N.W.2d 812,
814 (Minn. 1972).
As a result, summary judgment is warranted on
the abuse of process claim.
D.
Negligence
Finally,
negligence.
Salaimeh
“The
argues
four
that
elements
defendants
of
are
negligence
liable
are:
(1)
for
the
existence of a duty of care; (2) a breach of that duty; (3) an
injury; and (4) the breach of the duty being the proximate cause of
the injury.”
Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764, 767
(Minn. 2005).
Even if defendants owed Salaimeh a duty of care, she
has
not
produced
any
evidence
showing
13
that
such
a
duty
was
breached.
As
explained
above,
Salaimeh
has
not
shown
that
defendants violated the FDCPA or state garnishment statutes, and
she has not alleged any further conduct that would support a
negligence claim.
As a result, summary judgment is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
Defendant’s motion for summary judgment [ECF No. 26] is
granted; and
2.
Defendant’s motion to compel discovery [ECF No. 26] is
denied as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated:
November 25, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?