Garner v. Asset Management & Associates et al

Filing 28

MEMORANDUM DECISION and Orderdenying 17 Motion for Partial Summary Judgment. Signed by Judge Clark Waddoups on 12/20/11. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

JOLENE GARNER,

MEMORANDUM DECISION
AND ORDER
Plaintiff,

v.

Case No. 2:10-cv-00965 CW

ASSET MANAGEMENT ASSOCIATES,
INC. and THERESA SHEFFIELD,

Judge Clark Waddoups

Defendants.

INTRODUCTION
Plaintiff Jolene Garner asserts the defendants violated various provisions of the Fair Debt
Collection Practices Act when they sought to collect a debt for non-payment of homeowners’
association (“HOA”) fees.

The defendants are Asset Management Associates, Inc. (“Asset

Management”) and its president, Theresa Sheffield (collectively “Defendants”). Plaintiff seeks
partial summary judgment against Defendants on the ground that they were not licensed as debt
collectors when they attempted to collect the debt from Plaintiff. Plaintiff has failed to provide
sufficient evidence to support her summary judgment motion.
FACTUAL BACKGROUND
The facts asserted by Plaintiff are brief. From April, 2009 to May, 2011, Asset Management
attempted to collect a debt from Plaintiff for non-payment of HOA fees. Asset Management was not
licensed in Utah as a debt collector until approximately May, 2011. Ms. Sheffield is Asset
Management’s president and has ultimate control over all operations. These facts are accepted as
true for purposes of this motion.

ANALYSIS
The debt at issue here is for non-payment of HOA fees. Such fees have been recognized as
falling within the ambit of the Fair Debt Collections Practices Act (“FDCPA”), Ladick v. Van
Gemert, 146 F.3d 1205, 1206 (10th Cir. 1998), provided the fees are not to pay a fine for violation
of HOA rules. Durso v. Summer Brook Pres. Homeowners Ass’n, 641 F. Supp. 2d 1256, 1264 65
(M.D. Fla. 2008). Plaintiff has failed to provide evidence to the court about the nature of the HOA
fees at issue. Absent this information, Plaintiff has not proven that her debt falls under the FDCPA.
Even if the HOA fees do fall under the FDCPA, Plaintiff faces a second hurdle. The question
at issue is whether violation of a state debt collection statute can result in a violation of the FDCPA.
In Utah, debt collectors must be registered and bonded before they can begin collecting on a debt.
Utah Code Ann. §§ 12-1-1, 12-1-2. These provisions are designed to protect consumers and are
important enough that violating them is a class A misdemeanor. Id. § 12-1-6. The court concludes,
however, that failing to register does not create a per se violation of the FDCPA because the FDCPA
“was not meant to convert every violation of a state debt collection law into a federal violation.”
LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1192 (11th Cir. 2010).
This does not mean, however, that failing to register may never result in an FDCPA violation.
Indeed, the FDCPA expressly prohibits a debt collector from threatening “to take any action that
cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5). Because a person
cannot lawfully attempt to collect a debt in Utah unless they are registered and bonded, the court
concludes that failing to register may “support a federal cause of action under Section 1692e(5) of
the FDCPA,” if a person threatens “to take an action it could not legally take.” LeBlanc, 601 F.3d
at 1192. Importantly, however, courts distinguish between communications that merely inform a
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person they owe a debt versus those that threaten to take an action. See Wade v. Regional Credit
Ass’n, 87 F.3d 1098 (9th Cir. 1996); LeBlanc, 601 F.3d at 1192 93.
Here, Plaintiff provided the transcript from Ms. Sheffield’s deposition. Plaintiff’s counsel
asked Ms. Sheffield if Defendants ever told Plaintiff they would garnish her wages, file suit, or keep
calling her until she paid the debt. Sheffield Dep. Tr., 19:17 20:1 (Dkt. No. 18, Ex. 1). Ms.
Sheffield stated she had “no knowledge of any statement like that ever being said.” Id. at 20:2 3.
Such evidence does not show that Defendants threatened to take a legal action they could not
lawfully take. Moreover, Plaintiff has failed to provide the court with any other evidence to establish
this fact. Plaintiff is therefore not entitled to summary judgment, based on the present record, and
the court hereby DENIES her motion.
CONCLUSION
For the reasons stated above, the court DENIES Plaintiff’s motion for partial summary
judgment.1
DATED this 20th day of December, 2011.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

1

Dkt. No. 17.
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