Ozmun v. Portfolio Recovery Associates LLC et al

Filing 119

ORDER DISMISSING Defendant's 115 Motion to Expedite. ORDER DENYING Plaintiff's 104 Motion to Strike. ORDER GRANTING IN PART AND DENYING IN PART Defendants' 101 Motion for Summary Judgment. Signed by Judge Sam Sparks. (lt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2D1JUN 15

P1112:

15

JOSEPH OZMUN,
Plaintiff,

Case No. A-16-CA-940-SS

-vs-

PORTFOLIO RECOVERY ASSOCIATES, LLC;
RAUSCH, STRUM, ISRAEL, ENERSON &

HORNIK

LLC;

WESTERN SURETY

COMPANY; and TRAVELERS CASUALTY
AND SURETY COMPANY OF AMERICA,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Defendants' Motion for Summary Judgment [#101], PlaintiffJoseph Ozmun' s Response
[#103] in opposition, and Defendants' Reply [#106] in support as well as Plaintiffs Motion to Strike

[#104], Defendants' Response [#105] in opposition, and Plaintiffs Reply [#1 12] in support.1 Having

reviewed the documents, the relevant law, and the file as a whole, the Court now enters the following
opinion and orders.

Background
On August 3, 2016, Plaintiff filed the initial lawsuit in this action, alleging Defendants
RSIEH, Travelers Casualty and Surety Company of America (Travelers), Portfolio Recovery

Associates, LLC (PRA), and Western Surety Company (Western) violated the Fair Debt Collection

Also before the Court is Defendant Rausch, Sturm, Israel, Emerson, & Hornik LLC (RSIEH)'s Motion to
Expedite [#115], Plaintiffs Response [#117] in opposition, and RSIEH's Reply in support [#1 18]. Because the Court
rules on Defendants' motion for summary judgment and Plaintiff's motion to strike below, the Court dismisses RSIEH's
motion to expedite.
1

/

Practices Act (FDCPA), 15 U.S.C.

§

1692 et seq., and the Texas Debt collection Act (TDcA), Tex.

Fin, code § 392.00 1 et seq. compl. [#1]. The court previously summarized the facts underlying the

initial lawsuit when it ruled on Defendants' first motion for summary judgment, and the court
incorporates that earlier factual summary here. See Order of July 24, 2017 [#79].
In its July 24, 2017 order, the Court granted in part and denied in part Defendants' first

motion for summaryjudgment. Id. Although the Court granted summary judgment for Defendants
on Plaintiff's TDCA claims because Plaintiff lacked standing, the Court found fact issues precluded

summary judgment on Plaintiff's FDCPA claims. Id.
Shortly before this Court entered its first summary judgment order, Plaintiff filed two
additional lawsuits against PRA as well as Hartford Casualty Insurance Company (Hartford).

Plaintiff's allegations in the two lawsuits are identical except each references a different credit card
debt. See Compl. [#1] ¶ 14, Ozmun v. Portfolio Recovery Associates, No. 1:17-cv-0064 (alleging

PRA misrepresented a credit card debt with an account number beginning in 499410); Compl. [#1]

¶ 14, Ozmun

v.

Portfolio Recovery Associates, No. 1:17-cv-0065 (alleging PRA misrepresented a

credit card debt with an account number beginning in 210720). The two later-filed cases assert PRA
misrepresented the 499410 debt and the 210720 debt by failing to indicate these debts were disputed
to a credit reporting agency. Id. The FDCPA and TDCA claims surrounding the alleged

misrepresentation to a credit reporting agency in the later-filed cases are the same as those claims
from the initial lawsuit except Plaintiff added requests for injunctive relief to his TDCA claims in

the two-later filed cases. See id.; see also Pl.'s Resp. [#103] at 7-9. On September 28, 2017, the
Court consolidated the two-later filed cases into this action. Order of Sept. 28, 2017 [#13], No. 1:17cv-0064.
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Defendants now move, for a second time, for summary judgment. Plaintiffsubsequently filed
a motion to strike portions of Defendants' summaryjudgment motion and corresponding exhibits.

Both motions are now ripe for a decision.

Analysis
I.

Motion to Strike
The Court denies Plaintiffs motion to strike. In his motion to strike, Plaintiff complains

Defendants make unsupported allegations against Plaintiff's counsel and seeks to strike those
statements and corresponding exhibits. See Mot. Strike [#104]. The problematic allegations include

statementsPlaintiffs counsel violated rules ofprofessional conduct and fabricated Plaintiffs dispute

of the Debt. See id.
However, in reviewing their statements in context of the motion for summary judgment, the

Court finds Defendants provided some support for their allegations. See Second Mot. Summ. J.
[#101]. In fact, although Plaintiff claims Defendants make unsupported allegations, Plaintiff seeks
to strike the very exhibits Defendants use to support their allegations. Moreover, the allegations

relate to issues at the center of this lawsuit. Most significantly, the material Plaintiff seeks to strike
is relevant to a remaining fact issue this Court previously identified: whether Plaintiff actually

disputed the Debt when the Debt letter was sent to PRA. See Order of July 24, 2017 [#79] at 16. As
"motion[s] to strike should be granted only when the pleading to be stricken has no possible relation
the controversy[,]" the Court denies Plaintiffs motion to strike. See United States v. Coney, 689 F .3d
365, 379 (5th Cir. 2012) (quotation omitted).

-3-

II.

Motion for Summary Judgment

A.

Legal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law.
v.

FED. R. CIV. P.

56(a); Celotex Corp.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007).

A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could

return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248
(1986). When ruling on a motion for summary judgment, the court is required to view all inferences

drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court

"may not make credibility determinations or weigh the evidence" in ruling on a motion for summary
judgment. Reeves

v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477

U.S. at 254-55.
Once the moving party makes an initial showing that there is no evidence to support the

nonmoving party's case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment evidence, and thus are insufficient to

defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343

(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are

not competent summaryjudgment evidence. Id. The party opposing summaryjudgment is required
to identify specific evidence in the record and to articulate the precise manner in which that evidence

supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164(5th Cir. 2006). Rule
56 does not impose a duty on the court to "sift through the record in search of evidence" to support

the nonmovant's opposition to the motion for summary judgment. Id.

"Only disputes over facts that might affect the outcome of the suit under the governing laws
will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact
issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary

judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it will bear the burden of proof at trial,
summary judgment must be granted. Celotex, 477 U.S. at 322-23.
B.

Application
Defendants move for summary judgment, arguing they are entitled to judgment as matter of

law on the issue of damages and on Plaintiffs TDCA claims.
First, the Court declines to consider Defendants' damages argument. Much of Defendants'

argument is an attempt to reframe issues the Court previously considered in denying Defendants'
first summary judgment motion. As this Court previously stated, two fact issues exist concerning

Plaintiff's FDCPA claims: (1) Did Defendants misrepresent the Debt in moving for default judgment
in the state court and (2) did Plaintiff actually dispute the Debt when the Debt letter was sent to
PRA? Order of July 24, 2017 [#79]. The second fact issue also pertains to the two debts identified

in the two later-filed cases. Should the jury find in Plaintiffs favor on these fact issues and award

Plaintiff damages, the Court may evaluate such an award through post-judgment motions. Therefore,
the Court declines to review Defendants' claim they are entitled to a judgment on damages.

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However, the Court grants Defendants' motion for summaryjudgment on Plaintiffs TDCA

claims. Defendants argue Plaintiff has identified no damages and has stated no basis for injunctive

relief and thus Plaintiff has no standing for a TDCA claim. Mot. Summ. J. [#101] at 8-10; Reply
[#106]

¶J 3-4. The Court agrees.
As this Court previously summarized, for a cause of action under the TDCA, a party may sue

for either "injunctive relief to prevent or restrain a violation of this chapter" and "actual damages

sustained as a result of a violation of this chapter." TEX. FIN. CODE § 392.403(a). The Texas Supreme
Court has not defined the scope of

§

392.403(a), but "the rule suggested by [Texas] cases and

supported by a plain reading of the statutory text is that persons who have sustained actual damages

from a TDCA violation have standing to sue." McCaig v. Wells Fargo Bank (Tex.), NA., 788 F.3d
463, 473 (5th Cir. 2015) (citing

§

382.403(a)).

Plaintiff does not argue he sustained any actual damages. See Pl.'s Resp. [#103] at 16-17.
Instead, Plaintiff argues his two later-filed lawsuits request injunctive relief and therefore he has
standing under TDCA. Id. However, Plaintiff alleges no basis for requesting injunctive relief. To be
entitled to a permanent injunction under Texas law, "a plaintiff must plead and prove (1) a wrongful
act; (2) imminent harm; (3) irreparable injury; and (4) no adequate remedy at law." Radiant Fin., Inc.
v. Bagby,

05-1 6-00268-CV, 2017 WL 2927825, at *6 (Tex. App.Dallas July 10,2017, pet. denied)

(quotation omitted). Here, Plaintiffmakes no allegation of an imminent harm, an irreparable injury,
or the unavailability of an adequate remedy at law. See Compl. [#1], Ozmun

Associates, No. 1:1 7-cv-0064; Compl. [#1], Ozmun

v.

v.

Portfolio Recovery

Portfolio Recovery Associates, No.

1:1 7-cv-

0065. At most, Plaintiffs complaints allege PRA did not initially report Plaintiffs debts were

disputed to a credit reporting agency. Id. There is no allegation PRA continues to misreport

Plaintiff's debts or that Plaintiff seeks to prevent or restrain violation of the TDCA. Id.2 As Plaintiff
failed to show he suffered any damages and failed to allege any basis for seeking injunctive relief,
the Court finds Plaintiff lacks standing for his TDCA claims and grants Defendants' motion for

summary judgment concerning the TDCA claims.

Conclusion
Accordingly,
IT IS THEREFORE ORDERED Defendant Rausch, Sturm, Israel, Emerson,
& Hornik LLC's Motion to Expedite [#115] is DISMISSED;

IT IS FURTHER ORDERED that Plaintiff Joseph Ozmun's Motion to Strike

[#104] is DENIED; and
IT IS FiNALLY ORDERED that Defendants' Motion for Summary Judgment

[#101] is GRANTED iN PART and DENIED IN PART as described in this opinion.

SIGNED this the

/5'day of June 2018.
ai"-SAM
SENIOR UNITED STATES DISTRICT JUDGE

2

Instead, it appears Plaintiff merely tacked on requests for injunctive relief to his later-filed cases in an effort
to manufacture standing under the TDCA.

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