Dakowa v. MSW Capital, LLC

Filing 18

MEMORANDUM OPINION AND ORDER granting in part and denying in part 8 Defendants' Motion to Dismiss (Written Opinion). Signed by Judge Ann D. Montgomery on 02/17/2017. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Mahmoud Dakowa,
Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER
Civil No. 16-2753 ADM/FLN

MSW Capital, LLC and Messerli
& Kramer, P.A.,
Defendants.
______________________________________________________________________________
Darren B. Schwiebert, Esq., DBS Law LLC, Minneapolis, MN, on behalf of Plaintiff.
Derrick N. Weber, Esq., Messerli & Kramer, P.A., Plymouth, MN, on behalf of Defendants.
_____________________________________________________________________________
I. INTRODUCTION
On December 21, 2016, the undersigned United States District Judge heard oral argument
on Defendants MSW Capital, LLC (“MSW”) and Messerli & Kramer, P.A.’s (“M&K”)
(collectively, “Defendants”) Motion to Dismiss [Docket No. 8]. Plaintiff Mahmoud Dakowa
(“Dakowa”) opposes the motion. For the reasons set forth below, the Motion is granted in part
and denied in part.
II. BACKGROUND1
This lawsuit concerns credit card debt incurred by Dakowa that Defendants were engaged
to collect. Dakowa’s debt arose from his credit card contract with Credit One Bank. Compl.
[Docket No. 1] ¶ 7. On October 9, 2011, Credit One Bank charged off the $649.25 balance

1

In considering a motion to dismiss, the pleadings are construed in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994).

Dakowa owed. Id. ¶¶ 8–9. Following the charge-off, Dakowa no longer received periodic
statements reflecting the accumulation of interest on the debt. Id. ¶ 10.
On March 16, 2015, MSW, represented by M&K, served Dakowa with a state court
summons and complaint. Weber Decl. [Docket No. 10] Ex. A.2 The state court complaint
alleges that MSW now owns the account, and that Dakowa owes the principal balance of
$649.25 as well as $511.85 in interest from November 21, 2011 through March 10, 2015, plus
continuing interest on the balance at the rate of 23.90% per annum. Id. The complaint also
includes a “Cardholder Agreement” that Dakowa avers Defendants impliedly represents to be the
agreement governing his account Id.; Compl. ¶ 24.
Dakowa answered the state court complaint on March 30, 2015. He denied the
allegations but agreed that Credit One Bank issued him credit. See id. Ex. C. On April 20,
2015, MSW served Dakowa with Rule 26 disclosures. Id. Ex. D. Like the complaint, the
disclosures claim that Dakowa owes principal and interest. Id. The same Cardholder Agreement
that was attached to the complaint was also included in the Rule 26 disclosures. Id. Three
affidavits generally describing Credit One Bank’s procedures for selling accounts in default were
also attached. Id.
On August 25, 2015, MSW served upon Dakowa “Plaintiff’s First Set of Interlocking
Discovery.” Compl. ¶ 13; Weber Decl. Ex. E. In its request for admissions, MSW asks Dakowa

2

When considering a Rule 12 motion, the court generally must ignore materials outside
the pleadings, but it may consider “some materials that are part of the public record or do not
contradict the complaint.” Thunander v. Uponor, Inc., 887 F. Supp. 2d 850, 859 n.1 (D. Minn.
2012) (citing Mo. ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999),
cert. denied, 527 U.S. 1039 (1999)). Therefore, the state court complaint, answer, Rule 26
disclosures, discovery, and summary judgment filings and order will be considered at this
procedural posture.
2

to admit that an attached Cardholder Agreement is a copy of the terms and conditions governing
his account. Weber Decl. Ex. E. The attached Cardholder Agreement is the same Cardholder
Agreement included with the complaint and Rule 26 disclosures. MSW also asked Dakowa to
admit that an attached Bill of Sale and Assignment transferred his account from Capital One
Bank to MSW. Id. The Bill of Sale and Assignment refers to the same three affidavits that were
included with the Rule 26 disclosures. Id.
Dakowa did not timely answer the requests for admission. Compl. ¶ 32. On January 11,
2016, Defendants filed the collections action in Anoka County, Minnesota district court.3 Id. ¶
22; Weber Decl. Ex. F. The complaint filed is identical to the complaint served on Dakowa on
March 16, 2015, and included the same Cardholder Agreement. Id.
In February 2016, Dakowa made a $400 payment on the account. Id. ¶ 30. On June 30,
2016, Defendants moved for summary judgment in state court. Id. ¶ 31; Weber Decl. Ex. G. In
its summary judgment memorandum, Defendants state that “there remains an outstanding
principal balance due and owing of $649.25, plus accrued interest” and that “Credit One Bank,
N.A. assigned the Account to Plaintiff.” Compl. ¶¶ 33–34. The proposed findings Defendants
submitted provide for an award of interest at 23.90% per annum dating back to November 2011.
Id. ¶ 35.
On October 27, 2016, Judge Jonathan N. Jasper denied Defendants’ motion for summary
judgment. Schwiebert Aff. [Docket No. 15] Ex. A. In denying the motion, Judge Jasper
identified five questions of material fact precluding summary judgment. Id. at 7. Judge Jasper

3

In Minnesota, an action is commenced when the summons and complaint are served
upon the defendant. Minn. R. Civ. P. 3.10. To be timely, the lawsuit must be filed with the
court within one year after the action is commenced. Id. 5.04.
3

also concluded that Dakowa’s failure to timely respond to Defendants’ requests for admission
was not in bad faith but was a mistake by an unsophisticated party. Id. at 6.
On August 16, 2016, Dakowa filed this federal action alleging five violations of the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Dakowa’s five claims are
based on the August 25, 2015 “Interlocking Discovery,” the January 11, 2016 complaint filed in
Anoka County District Court, and the June 30, 2016 motion for summary judgment. Two of the
five alleged violations relate to the “Interlocking Discovery:” 1) the instructions and definitions
were deceptive, misleading, oppressive, unfair, and unconscionable, and 2) were designed to
mislead by seeking admissions to things that Dakowa either could not possibly know or were
false. Compl. ¶¶ 14, 19–21. Two other violations relate to the state court complaint: 3)
Defendants misrepresented the authenticity of the terms and conditions of Dakowa’s account,
and 4) improperly sought an interest award that had been waived. Id. ¶¶ 23–29. Finally, in its
summary judgment memorandum, Dakowa alleges that Defendants 5) misstated the outstanding
principal balance due. Id. ¶ 33.
Defendants have moved to dismiss the Complaint in its entirety. Defendants argue that
Dakowa’s claims are subject to the FDCPA’s one-year statute of limitations. Defendants also
argue that Dakowa’s claims relating to litigation do not state a plausible claim that entitles him
to relief.
III. DISCUSSION
A. Motion to Dismiss Standard
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings “shall contain a short
and plain statement of the claim showing that the pleader is entitled to relief.” A pleading must

4

contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw a reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether
a complaint states a plausible claim for relief is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679. “But where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to
relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)).
B. The FDCPA
The FDCPA “prohibits debt collector[s] from making false or misleading representations
and from engaging in various abusive and unfair practices.” Heintz v. Jenkins, 514 U.S. 291,
292 (1995) (quotations omitted, alteration in original). “The purpose of the FDCPA is to
eliminate abusive debt collection practices by debt collectors, . . . and debt collectors are liable
for failure to comply with any provision of the Act.” Dunham v. Portfolio Recovery Assocs.,
LLC, 663 F.3d 997, 1000 (8th Cir. 2011) (quotations omitted, ellipsis in original).
C. Statute of Limitations
Defendants argue that all of Dakowa’s claims are barred by the FDCPA’s one-year
statute of limitations. According to Defendants, because Dakowa received notice of these
alleged FDCPA violations over one year before commencing his federal action, his claims are
time-barred. Dakowa disagrees that his claims are untimely, arguing that each of the alleged
FDCPA violations are discrete acts that occurred within one year of the August 16, 2016 filing
date.
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The FDCPA states that any action to enforce any liability created by the Act must be
brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d).
In the Eighth Circuit, the statute of limitations is triggered when the debt collector had “its last
opportunity to comply with the FDCPA.” Mattson v. U.S. W. Commc’ns, Inc., 967 F.2d 259,
261 (8th Cir. 1992). There are diverging theories among the circuits about how the one-year
limitations period is applied. While the Eighth Circuit has not explicitly weighed in on the issue,
district courts within this circuit have held that, while each new communication brings a fresh
statute of limitations period for the claim, “[n]ew communications . . . concerning an old claim
[do] not start of new period of limitations.” Nutter v. Messerli & Kramer, P.A., 500 F. Supp. 2d
1219, 1223 (D. Minn. 2007) (quotation and citation omitted). Applying this language, courts in
this district have dismissed FDCPA suits when the plaintiff first learned of the alleged violation
outside of the limitations period, even though new communications concerning the unlawful act
were made within the limitations period. See, e.g., Fraenkel v. Messerli & Kramer, P.A., No. 041072, 2004 WL 1765309, at *4 (D. Minn. July 29, 2004); Kirscher v. Messerli & Kramer, P.A.,
No. 05-1901, 2006 WL 145162, at *4–5 (D. Minn. Jan. 18, 2006).
Dakowa resists this line of reasoning by citing Arvie v. Dodeka, LLC, No. 09-1076, 2010
WL 4312907, at *7–11 (S.D. Tex. Oct. 25, 2010). In Arvie, the FDCPA plaintiff received
collection phone calls and letters on May 4, 2007, May 15, 2007, August 18, 2008, and
September 11, 2008. Id. at *2. A state court suit seeking to collect was filed against the plaintiff
on November 24, 2008, and process was served on December 13, 2008. Id. at *3. The plaintiff
filed his FDCPA lawsuit on April 10, 2009. Id. Defendants moved for summary judgment,
arguing, like Defendants here, that the FDCPA violations alleged within one year of the filing of
the lawsuit were nevertheless time-barred because they were related to the same collection
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efforts and debt that was the subject of a communication made outside the limitations period. Id.
at *6. In concluding that certain of plaintiff’s claims were actionable, Arvie held that “‘[f]or
statute-of-limitations purposes, discrete violations of the FDCPA should be analyzed on an
individual basis.’” Id. at *9 (quoting Solomon v. HSBC Mortg. Corp., 395 F. App’x 494, 497
(10th Cir. 2010)). Arvie noted that “Fraenkel—and other similar cases— cited Sierra, which
explicitly distinguished the facts presented from a case ‘where defendants have sent a series of
threatening letters, each of which violate the FDCPA and only some of which are time-barred.’”
Id. at *10 (quoting Sierra v. Foster & Garbus, 48 F. Supp. 2d 393, 395 (S.D.N.Y. 1999)). Since
the plaintiff in Arvie had alleged such a case—“a series of letters, only some of which are timebarred,” the FDCPA violations occurring within the limitations period were not barred simply
because the FDCPA was allegedly violated over one year prior. Id.
Whether an act is a “discrete violation” or the “later effects of an earlier time-barred
violation” has also been the subject of litigation. Slorp v. Lerner Sampson & Rothfuss, 587 F.
App’x 249, 259 (6th Cir. 2014) (citing Purnell v. Arrow Fin. Servs., LLC, 303 F. App’x 297, 302
(6th Cir. 2008). The FDCPA plaintiff in Slorp alleged a series of unfair debt collection practices
concerning the validity of a mortgage assignment in a state-court foreclosure action. Id. at 251.
While the foreclosure action was initiated more than one year from when the FDCPA case was
commenced, the plaintiff argued that the defendants committed fresh violations of the FDCPA
when they reaffirmed the legitimacy of the assignment in pleadings and memoranda that were
filed within one year of the FDCPA action. Id. at 259. The Sixth Circuit held that a new
FDCPA violation was not committed because the pleadings and memoranda were “the
continuing effects of their initial violation,” and that the plaintiff “was not deceived or abused
anew each time the defendants reaffirmed their deceptive statements throughout the litigation.”
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Id.; see also Smith v. Lerner, Sampson & Rothfuss, L.P.A., 658 F. App’x 268, 273 (6th Cir.
2016) (citing Slorp and holding that FDCPA violations did not occur anew when the defendant
asserted the same allegedly fraudulent mortgage interest throughout a state court action).
The rule in Slorp will be applied to each of the five FDCPA violations alleged in this
case.
1. Interest and Terms and Conditions
When Dakowa was served with the state court complaint on March 16, 2015, his claims
relating to the interest and the terms and conditions began accruing.4 Defendants’ reaffirmation
of these statements in later court documents within the limitations period does not make these
claims timely because “it merely gave ‘present effect’ to deceptive conduct that had occurred
outside the limitations window.” Slorp, 587 F. App’x at 259. As was true with the plaintiff in
Slorp, Dakowa was not deceived or abused anew each time Defendants repeated these alleged
deceptive statements throughout the litigation. Because the statute of limitations for these claims
began running over one year before the filing date of this lawsuit, they are time-barred.
2. “Interlocking Discovery”
Dakowa’s two claims relating to the August 25, 2015 “Interlocking Discovery” are not
barred by the statute of limitations. First, Dakowa alleges that the discovery itself was confusing
and misleading. Contrary to Defendants’ argument, that allegation does not relate back to
assertions made in the March 16, 2015 state court complaint, or implicate the “present effect”
4

While the state court complaint did not explicitly claim that the attached Cardholder
Agreement reflected the terms and conditions governing Dakowa’s account with Capital One
Bank, Dakowa avers in his FDCPA Complaint, that Defendants “impliedly represented” in their
state court complaint that the Cardholder Agreement was “the credit agreement between Credit
One Bank and Mr. Dakowa.” Compl. ¶ 24. Thus, Dakowa was put on notice of this alleged
FDCPA violation when he was first served with the state court complaint on March 16, 2015,
more than one year prior to his federal case.
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rule articulated in Slorp. Dakowa alleges that the “Interlocking Discovery” is confusing,
misleading, and designed to trick the consumer into admitting things that were false. This is
arguably a discrete FDCPA violation that arose during the limitations period.
For the same reasons, Dakowa’s second allegation concerning the “Interlocking
Discovery”—that Defendants violated the FDCPA by asking him to admit facts Defendants
knew were untrue—also remains live. This claim alleges that Dakowa was asked to admit that
the three affidavits described above were a Bill of Sale and Assignment that transferred his
account from Credit One Bank to MSW. This claim remains live even though the same
affidavits were included in the April 20, 2015 Rule 26 disclosures. Unlike the implicit
representation Dakowa avers with respect to the terms and conditions in the Cardholder
Agreement, the three affidavits do not impliedly represent that Credit One Bank sold Dakowa’s
account to MSW.5 Therefore, this claim did not accrue until August 25, 2015, when Defendants
asked Dakowa to admit that the three affidavits transferred his account to MSW, thereby
explicitly representing that the affidavits evinced such an assignment. Dakowa alleges he was
being asked to admit a falsehood because the three affidavits do not show that his account was
transferred to MSW.
3. Principal Amount Owed in Summary Judgment Filing
Dakowa’s allegation that Defendants misrepresented the principal amount owed in their
summary judgment filing is also a discrete act that is not barred by the statute of limitations.
Dakowa alleges that Defendants failed to take into account the $400 payment he made in
February 2016. As with the allegation that the “Interlocking Discovery” was confusing, this
claim does not relate to or arise from an alleged FDCPA violation that occurred outside of the
5

Notably, MSW does not appear in any of the three affidavits.
9

limitations window. Rather, this claim is premised on the $400 payment made within the
limitations period. Since Dakowa alleges Defendants failed to account for that payment in later
legal filings, it is a discrete event occurring within the one-year statute of limitations.
4. Conclusion
The Court agrees that two of the five alleged FDCPA violations in this case are barred by
the statute of limitations. Dakowa’s claims that Defendants violated the FDCPA by 1)
misrepresenting the authenticity of the terms and conditions of his account, and 2) improperly
seeking an interest award that had been waived, are dismissed as barred by the FDCPA statute of
limitations.
D. “Interlocking Discovery”
Defendants argue that Dakowa’s claims concerning the August 25, 2015 “Interlocking
Discovery” fail as the documents are not misleading or otherwise contrary to the proscriptions of
the FDCPA. Dakowa disagrees, arguing that under the least sophisticated consumer standard, he
has plausibly alleged that the discovery was confusing, misleading, oppressive, and designed to
trick and mislead a consumer defendant into not responding. Dakowa also alleges FDCPA
liability based on Defendants asking him to admit facts that Defendants knew were false.
The prohibitions of the FDCPA apply to discovery and requests for admission. See
Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 573–74 (8th Cir. 2015). In evaluating
whether a debt collector used a false, deceptive, or misleading representation or means in
connection with the collection of any debt, in violation of § 1692e, the representation or means
must be viewed “through the eyes of the unsophisticated consumer.” Duffy v. Landberg, 215
F.3d 871, 872 (8th Cir. 2000). “These tests are designed to protect consumers of below average
sophistication or intelligence, but they also contain an objective element of reasonableness that
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prevents liability for bizarre or idiosyncratic interpretations of collection notices.” Peters v. Gen.
Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir. 2002) (citations and quotations omitted). This
standard “‘ensure[s] that the FDCPA protects all the consumers, the gullible as well as the
shrewd . . . the ignorant, the unthinking, and the credulous.’” Clark v. Capital Credit &
Collection Servs., Inc., 460 F.3d 1162, 1171 (9th Cir. 2006) (quoting Clomon v. Jackson, 988 F.
2d 1314, 1318–19 (2d Cir. 1993) (alterations and ellipsis in original)).
Dakowa argues that the August 25, 2015 “Interlocking Discovery” violates the FDCPA
for two reasons. First, the discovery language is confusing and misleading. Second, the requests
for admissions asked Dakowa to falsely admit that the three affidavits evinced a bill of sale and
assignment transferring his account from Capital One Bank to MSW.
1. Confusion
When viewed through the eyes of an unsophisticated consumer, Dakowa has stated a
plausible claim that Defendants’ August 25, 2015 “Interlocking Discovery” violates the FDCPA.
Three independent reasons, taken cumulatively, lead to this result.
The first reason relates to the words and phrases themselves. The documents served upon
Dakowa are oddly captioned “First Set of Interlocking Discovery.” “Interlocking Discovery” is
not a standard legal term. Rather, it appears to be an attorney-created phrase positioned in the
caption of a legal document. Defendants have not articulated a reason for captioning its
documents in this unusual way, leaving unrebutted Dakowa’s allegation that “Interlocking
Discovery” is designed to trick and confuse. Other words and phrases in the “Interlocking
Discovery” are seemingly designed to be difficult to follow. One definition, for example, states
that “the masculine noun or pronoun should be construed to include the feminine or neuter of the
noun or the pronoun as necessary to bring within the scope of the request or interrogatory
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information which might otherwise be construed to be outside its scope.” Compl. ¶ 18.
“Document” is defined to include “data processed or generated by computer or other machine
including non-identical copies, whether rendered non-identical by reason of notation made on
said copies or otherwise.”6 Id. ¶ 16.
Second, when Defendants served these documents on Dakowa, he was unrepresented by
counsel. While the definitions and instructions may not have deceived or misled an attorney
accustomed to parsing though complex jargon, the lens through which the language must be
viewed is that of an “unsophisticated consumer.” In Sayyed v. Wolpoff & Abramson, LLP, 733
F. Supp. 2d 635, 642–44 (D. Md. 2010), a consumer made a similar claim, alleging that
instructions pertaining to interrogatories were confusing. In that case, however, the consumer
was represented, and any erroneous or confusing statements would “have been immediately
apparent to even the least competent member of the Maryland bar.” Id. at 643. That is not the
case here.
Third, on October 27, 2016, Judge Jasper denied Defendants’ motion for summary
judgment in the state court action. In rejecting Defendants’ argument that Dakowa’s failure to
timely respond to the requests for admission required they be deemed admitted, Judge Jasper
accepted Dakowa’s attestation that his failure to respond was a mistake not made in bad faith.
Judge Jasper additionally stated that Dakowa “was confused both by the unnecessarily
complicated instructions and definitions within the Interlocking Discovery.” Schwiebert Aff.
Ex. 1 at 6. Although, the context in which Judge Jasper’s statement was made was not in

6

Defendants argue that because the majority of the verbiage comes directly from the
Minnesota Rules of Civil Procedure, such language should not be held to be misleading or
confusing. While some of the instructions and definitions utilize language from the Minnesota
Rules of Civil Procedure, most do not, including the caption and definitions recited above.
12

assessing the clarity of the “Interlocking Discovery” documents themselves, it lends support to
the plausibility of Dakowa’s allegations.
These reasons when combined, permit Dakowa’s claim that the “Interlocking Discovery”
was confusing and designed to mislead to move forward. This result, however, is not to be
interpreted broadly, to be held against debt collectors who employ reasonable discovery means
during the course of litigation. The line distinguishing between a plausible and implausible
claim alleging FDCPA liability based on confusing and misleading language in discovery is
difficult to draw. To be sure, the FDCPA does not require “everything from a debt collector’s
pen to be in plain language.” Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d
470, 473 (7th Cir. 2007). But this does not permit a debt collector to employ obfuscatory
language designed to confuse and trick an unrepresented consumer. See id. (“A rule against
trickery differs from a command to use plain English and write at a sixth-grade level.”).
2. Request to Admit False Information
Dakowa’s argument relating to the three affidavits in Defendants’ requests for admission
also passes muster at this stage. Nearly the same issue was discussed in McCollough v. Johnson,
Rodenberg & Lauinger, 610 F. Supp. 2d 1247, 1255–56 (D. Mont. 2009), where, as here, a pro
se defendant was asked in requests for admission to admit information that the defendant knew
to be false. In ruling on summary judgment that this violated the FDCPA, the district court
stated, “[t]he requests for admission appear to be designed to conclusively establish each element
of JRL’s case against McCollough and to use the power of the judicial process against a pro se
defendant to collect a time-barred debt. This conduct is abusive, unfair and unconscionable.”
Id. at 1256. Here, in asking Dakowa to affirm that MSW was the debt holder, Defendants were
using the judicial process to establish ownership of Dakowa’s account, something that Dakowa
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disputes.7
On appeal, the Ninth Circuit affirmed that holding, concluding “that the service of
requests for admission containing false information upon a pro se defendant without an
explanation that the requests would be deemed admitted after thirty days constitutes ‘unfair or
unconscionable’ or ‘false, deceptive, or misleading’ means to collect a debt.” McCollough v.
Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 952 (9th Cir. 2011). In this case,
Defendants inclusion of language explaining the consequences of failing to respond does not
mandate dismissal under Rule 12(b)(6). The district court in McCollough ruled that the conduct
at issue violated the FDCPA as a matter of law, whereas here, on a Rule 12 motion, the question
is limited to whether Dakowa has pled sufficient facts to state a plausible claim.
E. Summary Judgment
Dakowa alleges that Defendants’ June 30, 2016 summary judgment pleadings in state
court inaccurately state that “there remains an outstanding principal balance due and owing of
$649.25, plus accrued interest,” and that Dakowa “owes the deficiency balance on the Contract
of $649.25.” Compl. ¶ 33. Dakowa argues that this violates the FDCPA because it failed to take
into account the $400 payment he made in February 2016. Defendants respond that Dakowa’s
$400 payment was reflected in the affidavit and proposed order filed in support of its motion for
summary judgment. Defendants also argue that because Dakowa does not allege he was

7

Defendants cite the recent case of Hill v. Accounts Receivable Services, LLC, and
argue that it compels dismissal of Dakowa’s claims relating to the “Interlocking Discovery”
because Dakowa was not actually deceived by the documents. No. 16-219, 2016 WL 6462119,
at *5 (D. Minn. Oct. 31, 2016). This argument is unpersuasive; contrasted with the plaintiff in
Hill, who did not claim that he was actually deceived, Dakowa avers in his Complaint that the
“Interlocking Discovery” was deceptive. Moreover, the plaintiff in Hill prevailed on the merits
in his underlying state court action, further supporting a lack of deception, whereas Dakowa has
only defeated Defendants’ summary judgment motion.
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deceived by the alleged misrepresentation, this violation fails.
In Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814, 819 (8th Cir. 2012), the
Eighth Circuit rejected FDCPA claims based on litigation activity because neither the plaintiff
nor the state court judge “was misled, deceived, or otherwise duped” by the allegedly deceptive
court filings. See also Janson v. Katharyn B. Davis, LLC, 806 F.3d 435, 437–38 (8th Cir. 2015)
(citing Hemmingsen and affirming dismissal of FDCPA claims because the plaintiff did not
“plausibly allege that he or anyone else was misled by that falsehood”). The same result is
warranted here. Dakowa does not allege that he was misled or deceived by the balance listed in
Defendants’ summary judgment filing. Nowhere in his Complaint does he allege that he was
confused by the claim that he “owes the deficiency balance on the Contract of $649.25.” Compl.
¶ 33. Rather, Dakowa merely alleges that Defendants misrepresented the amount owed, averring
that “[e]ven if MSW Capital and Messerli & Kramer were correct about everything else in this
case, the ‘principal amount due and owing’ would be $249.25, not $649.25.” Id. Moreover,
Defendants’ summary judgment filings did not cause Judge Jasper to be confused about the
amount owed. In his order denying summary judgment, Judge Jasper found that Defendants
allege they are entitled to judgment in the amount of “649.25 plus 23.90% interest since
November 21, 2011 (totaling $739.37), and any costs or disbursements ($675), less a $400
payment for a total of $1,663.62.” Schwiebert Aff. Ex. 1 at 1 (emphasis added). Without the
required allegation of actual deception, this claim fails. Accordingly, Dakowa’s claim that
Defendants violated the FDCPA by misstating the amount due in summary judgment filings in
state court is dismissed.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
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HEREBY ORDERED that Defendants MSW Capital, LLC and Messerli & Kramer, P.A.’s
Motion to Dismiss [Docket No. 8] is GRANTED IN PART and DENIED IN PART.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: February 17, 2017.

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