Hagen v. Messerli & Kramer, P.A.
Filing
39
ORDER denying 17] defendant's Motion for Summary Judgment; granting 26 plaintiff's Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 1/13/2015. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-863(DSD/JSM)
Della Virginia Hagen,
Plaintiff,
ORDER
v.
Messerli & Kramer, P.A.,
Defendant.
Amanda Roberson, Prentiss E. Cox, University of Minnesota
Law
Center,
229
19th
Avenue
South,
Suite
190,
Minneapolis, MN 55455, counsel for plaintiff.
Derrick N. Weber, Esq. and Messerli & Kramer, 3033 Campus
Drive, Suite 250, Plymouth, MN 55441, counsel for
defendant.
This matter is before the court upon the cross motions for
summary judgment by plaintiff Della Virginia Hagen and defendant
Messerli & Kramer, P.A. (M&K).
Based on a review of the file,
record, and proceedings herein, and for the following reasons, the
court grants Hagen’s motion and denies M&K’s motion.
BACKGROUND
This debt-collection dispute arises out of communications made
by M&K to Hagen regarding a consumer debt that Hagen incurred with
Capital One Bank (USA), N.A. (Capital One).
Hagen opened a credit
account with Capital One on June 23, 1998.
See Newman Decl. ¶ 4.
She failed to make payments on the account, and on June 4, 2007,
Capital One retained M&K to collect on the debt.
Id.
On behalf of
Capital One, M&K filed suit against Hagen in Hennepin County
District Court.
Id.
on December 28, 2007.
Judgment was entered in favor of Capital One
Id.
At some point before July 11, 2013, M&K contacted Hagen to
collect on the debt.
Hagen Aff. ¶ 6.
On July 11, 2013, Mike
Persellin, an attorney for Mid-Minnesota Legal Aid, sent a letter
to M&K on behalf of Hagen.
Id. ¶ 7.
The letter stated that
“pursuant to the Fair Debt Collection Practices Act, Ms. Hagen
wants no further non-litigation contact from you or any other debt
collector to whom the above account may be assigned or sold.”
Newman Decl. Ex. A (emphasis added).
M&K continued to contact Hagen after receiving the letter. On
October 3, 2013, M&K sent Hagen a letter offering her options for
repaying the debt.
Id. Ex. B.
The letter stated that the “purpose
in writing to you is to determine whether we can settle this
account for LESS than the current unpaid balance.”
Id.
Hagen a nearly identical letter on January 27, 2014.
M&K sent
Id. Ex. C.
Both letters stated that they were “attempt[s] to collect a debt.”
Id. Exs. B, C.
Hagen filed this action on March 28, 2014, alleging
violations of the Fair Debt Collection Practices Act (FDCPA).
parties now cross-move for summary judgment.
2
The
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.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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.
Celotex, 477 U.S. at 322-23.
3
II.
15 U.S.C. § 1962c
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).
“If a consumer notifies a debt collector in writing that the
consumer refuses to pay a debt or that the consumer wishes the debt
collector to cease further communication with the consumer, the
debt collector shall not communicate further with the consumer with
respect to such debt.”
15 U.S.C. § 1692c(c).
Hagen argues that the letters sent to her after July 11, 2013,
were prohibited under § 1692c(c).
M&K responds that the letters
complied with Hagen’s conditional request to stop further “nonlitigation
request
contact.”1
was
ambiguous
Specifically,
and
that
its
M&K
argues
letters
that
Hagen’s
constituted
non-
litigation contacts because they were sent to enforce Capital One’s
rights as a judgment creditor.
The court disagrees.
Although the scope of what Hagen intended to prohibit is
unclear, the court finds that no reasonable interpretation of her
letter would
allow
collection letters.
M&K
to
continue
sending
her
general
debt
See Barnes v. Seterus, Inc., No. 13-81021-CV,
1
M&K also made at least five phone calls after July 11, 2013,
in order to seek repayment of the debt. Hagen Aff. ¶ 7; Answer
¶ 15.
Hagen has not, however, pointed to any material in the
record showing that the calls were “non-litigation contacts.” As
a result, the court does not consider the phone calls for summary
judgment purposes. See Fed R. Civ. P. 56(c)(1)(A).
4
2013 WL 6834720, at *2 (S.D. Fla. Dec. 26, 2013) (rejecting
argument that consumer’s request to “stop ASAP with harassing phone
calls daily and on the weekends” allowed debt collector to continue
making general contacts regarding her debt).
Moreover, M&K’s
letters were not litigation-related simply because Capital One
secured
a
judgment
against
Hagen.
M&K
notes
that
judgment
creditors may pursue discovery and seek remedies following entry of
judgment.
P. 69.2
See, e.g., Minn Stat. §§ 550.01, 571.71; Minn. R. Civ.
The letters sent to Hagen, however, did not express an
intent to pursue formal procedures or remedies.
Rather, their
purpose was to seek repayment without resorting to litigation.
M&K next argues that Hagen’s letter was invalid because it was
sent by an attorney rather than a consumer.
“Consumer” is defined
for purposes of § 1692c to include “the consumer’s spouse, parent
(if
the
consumer
administrator.”
is
a
minor),
guardian,
15 U.S.C. § 1692c(d).
executor,
or
M&K argues that the
omission of a consumer’s attorney from this list indicates that
2
M&K further notes that the effect of Hagen’s request is to
force debt collectors to resort to formal garnishment, levy, and
post-judgment deposition proceedings. Indeed, that is the apparent
purpose of § 1692c(c), which includes exceptions permitting further
contact to provide notification to consumers that collection
efforts are terminating or that certain remedies will be invoked.
See 15 U.S.C. § 1692c(c)(1)-(3). M&K does not argue, and the court
does not find, that the letters fit within these statutory
exceptions.
5
only a consumer may make a valid cease request.3
disagrees.
written
The court
The court is not aware of any authority invalidating a
request
under
§
1692c(c)
because
it
was
sent
by
an
attorney. Without express language indicating otherwise, the court
will not infer that § 1692c(c) prohibits Hagen from obtaining
counsel to protect her rights under the FDCPA.
As a result, no
reasonable juror could conclude that the letters sent by M&K after
July 11, 2013, were permissible under the FDCPA, and summary
judgment is warranted in favor of Hagen.
III.
Damages, Costs, and Fees
A debt collector who violates the FDCPA “is liable for any
actual damages sustained by the plaintiff and ‘additional damages
as the court may allow, but not exceeding $1,000.’”
Jenkins v. E.
Asset Mgmt., LLC, No. 4:08-cv-1032, 2009 WL 2488029, at *3 (E.D.
Mo. Aug. 12, 2009) (quoting 15 U.S.C. § 1692k(a)(1), (2)(A)).
In
determining the amount of statutory damages to award, the court
considers “the frequency and persistence of noncompliance by the
debt collector, the nature of such noncompliance, and the extent to
3
In support, M&K notes that courts have interpreted the term
“consumer” under § 1692c(d) to exclude the consumer’s attorney when
discussing whether a violation of the FDCPA can be premised upon a
debt collector’s communications to the attorney. See Tinsley v.
Fin. Partners, Inc., 634 F.3d 416, 419 (7th Cir. 2011); Guerrero v.
RJM Acquisitions LLC, 499 F.3d 926, 934-35 (9th Cir. 2007); Zaborac
v. Phillips & Cohen Assocs., Ltd., 330 F. Supp. 2d 962, 967 (N.D.
Ill. 2004). These cases are inapposite, however, because they do
not question whether an attorney may send a letter under § 1692c(c)
to a debt collector on behalf of a consumer.
6
which
such
noncompliance
§ 1692k(b)(1)).
was
intentional.”
15
U.S.C.
The court must also award “the costs of the
action, together with a reasonable attorney’s fee as determined by
the court.”
Id. § 1692k(a)(3).
Hagen requests $1,000 in statutory damages plus attorney’s
fees and costs.
The court finds that this request is warranted.
The letters sent by M&K disregarded the FDCPA’s simple requirement
that debt collectors stop communicating with consumers upon written
request.
Instead of complying with its obligations under the
FDCPA, M&K interpreted Hagen’s letter in a way that would render
both it and § 1692c(c) a nullity.
As a result, the court will
order M&K to pay $1,000 in statutory damages plus costs and
attorney’s fees.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.
Defendant’s motion for summary judgment [ECF No. 17] is
denied;
2.
Plaintiff’s motion for summary judgment [ECF No. 26] is
granted;
3.
Plaintiff is awarded $1,000 in statutory damages; and
7
4.
Plaintiff is awarded costs and attorney’s fees in an
amount to be determined at a later date.
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated:
January 13, 2015
s/David S. Doty
David S. Doty, Judge
United States District Court
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