Ahrens v. Miller and Steeno, P.C. et al

Filing 47

OPINION, MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion for Summary Judgment, [Doc. No. 21 ] is denied. Signed by District Judge Henry Edward Autrey on 07/14/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JENE M. AHRENS,

)
)
Plaintiff,
)
)
v.
)
)
MILLER AND STEENO, P.C., et al., )
)
Defendants.
)

Case No. 4:13CV1976 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Partial Summary
Judgment, [Doc. No. 21]. Defendant opposes the Motion. Although Plaintiff has
filed an Amended Complaint, she has sought and was granted leave to supplement
her Motion for Partial Summary Judgment. The Court therefore assumes Plaintiff
intends her Motion for Partial Summary Judgment as to the Amended Complaint.
The uncontroverted facts taken from the parties’ submissions are as follow:
Plaintiff is an individual consumer. She did not incur the alleged debt at issue in
this suit for any business-related purpose. The services that give rise to the alleged
debt relate to a personal credit card account with Citibank.
Defendants are debt collectors –Defendants Miller & Steeno and Sandford
Miller each admit that they regularly attempt to collect debts alleged to be due
another. Defendant Forsyth is a debt collector because, as a debt buyer that

purchased Plaintiff’s debt from the original creditor, Forsyth’s only conceivable
business purpose is the collection of debts
Defendant Forsyth sued Plaintiff in 2005 in St. Charles County Circuit
Court. Defendant Forsyth was represented in that case by Defendant Miller &
Steeno. Defendants did not personally or through their employees physically
serve Plaintiff with the summons or petition. In the instant case, the return of
service states that on March 24, 2005, Deputy Sheriff Bruce Bergsieker left a copy
of the summons and a copy of the petition at the dwelling place or usual abode of
Plaintiff with Michael Ahrens, a person of Plaintiff’s family over the age of 15
years.
A default judgment against Plaintiff.
The April, 2013 letter stated as follows: “After review of your file we find a
balance of $11,726.38. Please pay that amount by cashiers [sic] check or money
order to “Miller and Steeno, P.C.” and make sure our file number (05-00636-0) is
on your payment to ensure you get credit. If you are unable to pay in full, call this
office immediately to set up a payment plan.” The letter did not indicate whether
interest was accruing on the balance of the debt.
Interest was accruing daily on Plaintiff’s account, as evidenced by the
increase in balance from $4,061.90 on the day of the default judgment to 11,726.38
as of the date of the April 1, 2013 letter.

The letter did not contain any language that explained to Plaintiff that due to
interest, late charges, and other charges that may vary from day to day, the amount
due on the day Plaintiff would pay might be greater than the amount due contained
in the collection letter.
Plaintiff hired attorney Kristoffer Boevingloh to have the default judgment
set aside.
In August 2013, Plaintiff succeeded in having service quashed service in the
prior case and the default judgment was set aside.
Plaintiff never entered into any agreement whereby she consented to
arbitrate disputes between herself and Defendants.
The standards for summary judgment are also well settled. In determining
whether summary judgment should issue, the Court views the facts and inferences
from the facts in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Employers
Mut. Cas. Co. v. Wendland & Utz, Ltd, 351 F.3d 890 (8th Cir. 2003); Enter. Bank
v. Magna Bank 92 F.3d 743, 747 (8th Cir. 1996). The moving party has the burden
to establish both the absence of a genuine issue of material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56©; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Enter. Bank, 92 F.3d at 747. Once the moving party has met this burden,

the nonmoving party may not rest on the allegations in its pleadings but by
affidavit or other evidence must set forth specific facts showing that a genuine
issue of material fact exists. Fed.R.Civ.P. 56(e); Anderson 477 U.S. at 256; Krenik
v. Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). To survive a motion for summary
judgment, the “nonmoving party must ‘substantiate his allegations with sufficient
probative evidence [that] would permit a finding in [his] favor based on more than
mere speculation, conjecture, or fantasy.’ Wilson v. Int’l Bus. Machs. Corp., 62
F.3d 237, 241 (8th Cir. 1995)(quotation omitted).” Putman v. Unity Health
System, 348 F.3d 732, 733-34 (8th Cir. 2003). “[A] complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Celotex, 477 U.S. at 323. The Court will review the
facts in this case with these standards in mind.
Defendants have submitted affidavits of Ronald C. Miller, Sandford J. Miller
and Stephen J. Barber in response to the motion for partial summary judgment.
Ronald Miller avers that a letter was sent to Plaintiff on February 5, 2005. In
support of this averment, attached to this affidavit is what appears to be an internal
document regarding Plaintiff’s debt. This document is dated 10/11/13, contains the
date “2/05/05,” with a line item of interest 2/01/05-2/02/05, 1.66, with another
figure of 3,870.10 in a separate column.

Sanford Miller avers he had absolutely no involvement in the content or
preparation of the “February 2, 2005 or April 1, 2013 letters.” He also avers that
he had absolutely no involvement in the actual service of the summons or petition
on Plaintiff. Finally, he avers he had absolutely no involvement in the entry of the
default judgment against Plaintiff.
In the affidavit of Ronald Miller, Miller avers that Forsyth Financial Group,
LLC had absolutely no involvement in the content or preparation of the April 1st
letter; Forsyth Financial Group, LLC had absolutely no involvement in the actual
service of the summons or petition on Plaintiff; and that Forsyth Financial Group,
LLC retained the services of Miller and Steeno, P.C. to the collect a debt from
Plaintiff.
Miller also avers that Miller and Steeno, P.C. had absolutely no involvement
in the actual service of the summons or petition on Plaintiff
The default judgment entered on April 22, 2005 stated that interest would
accrue on the judgment.
The court has reviewed the record before it. Based on the entire record,
summary judgment in favor Plaintiff is not appropriate. Considering all of the
facts, together with inferences to be drawn therefrom, it appears that genuine issues
of material fact remain. While Plaintiff argues that the affidavits submitted in
opposition to the motion are self-serving, Plaintiff presents nothing to controvert

the contents therein. Genuine disputes of material fact remain at this stage of the
litigation. Summary judgment is therefore, not appropriate at this time.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment, [Doc. No. 21] is denied.
Dated this 14th day of July, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE