Opinion
Civ. No. 3:00CV287.
November 7, 2000.
MEMORANDUM OPINION
This matter is before the Court on the Plaintiff's Motion for Partial Summary Judgment against Robert Vest pursuant to Fed.R.Civ. 56(c). Plaintiff Thomas Jones claims that the Defendants violated the Fair Debt Collection Practices Act ("FDCPA" or Act), 15 U.S.C. § 1692, when they allegedly harassed him to collect a debt he did not owe, made false threats of arrest and garnishment, misrepresented the urgency of payments, impermissibly contacted Plaintiff's employer in regard to debt collection, directed racial slurs at him, and engaged in the unauthorized practice of law by filing a garnishment summons on behalf of a creditor who had not authorized such action. The Plaintiff seeks maximum statutory damages of $1,000 pursuant to 15 U.S.C. § 1692(k)(a)(2)(A), and costs, expenses and attorney's fees pursuant to 15 U.S.C. § 1692(k)(a)(3). The case is before this Court by consent of the parties pursuant to 28 U.S.C. § 636(c)(1). Jurisdiction is appropriate pursuant to 42 U.S.C. § 405(g).
For the reasons discussed below, it is hereby ORDERED that the Plaintiff's Motion for Partial Summary Judgment is GRANTED as to Defendant Robert Vest.
BACKGROUND
Plaintiff Jones filed a Complaint in this Court on May 5, 2000 in which he alleged that the Defendants' collection agency, Electronic Billing Services, Inc.("EBS"), together with Robert Vest, an EBS officer, director and employee; Eva Vest, an employee; Michelle Watson, an employee; and Jane Doe No. 1, an employee, violated the FDCPA as a result of their conduct in attempting to collect two consumer debts allegedly owed by the Plaintiff.
On September. 27, 2000, this Court granted the Plaintiff's uncontested motion for partial summary judgment against EBS and awarded to the Plaintiff the maximum statutory amount of $1,000 as provided for under the FDCPA as well as reasonable attorney's fees and costs to be assessed against EBS at the conclusion of the proceedings. In addition, the Court granted remaining Defendants leave to file an Amended Motion to Dismiss or other responsive pleading to the Plaintiff's Motion for Partial Summary Judgment as against them by October 11, 2000. The Plaintiff was granted leave to file a reply by Oct. 17. Both parties timely filed their respective submissions, with the Plaintiff abridging his Motion for Partial Summary Judgment as against Defendant Robert Vest only.
STANDARD OF REVIEW
Summary judgment is appropriate when, viewed in the light most favorable to the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c), Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). The Court must decide if the evidence "presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The FDCPA prohibits debt collectors from engaging in unconscionable, abusive, deceptive and unfair debt collection practices, including but not limited to making false threats of arrest and garnishment, impermissibly contacting third parties in regard to debt collection and making false representations about the urgency of payment. It is a strict liability statute requiring only evidence of "the capacity of the statement to mislead; evidence of actual deception is unnecessary." U.S. v. National Financial Services, Inc., 98 F.3d 131, 139 (4th Cir. 1996).
A prima facie case for violation of the FCDPA requires a plaintiff to prove three things: (1) that the plaintiff is a "consumer" as defined by the statute; (2) that the defendant is a "debt collector" as defined in the statute; and (3) that the defendant has violated by act or omission a provision of the FCDPA. Under U.S. v. National Financial Services, this Court must adhere to the "least sophisticated debtor" standard: "While protecting naive consumers, the standard also prevents liability for bizarre or idiosyncratic interpretations of collections notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care." Id. at 136.
FACTS
Defendant Robert Vest admits he is a debt collector as defined by 15 U.S.C. § 1692(a)(6) and that the Plaintiff, Thomas Jones, is a consumer as defined by 15 U.S.C. § 1692(a)(3). (Resp. to Pl.'s First Req. for Admis. to Def. Robert Vest, Pl.'s Ex. B, para. 1 and para.. 45). Defendant Robert Vest claims he hired an attorney, Michael Champlin, to file a garnishment summons against the Plaintiff on February 16, 2000 with the authorization and consent of G.E. Matthews, Inc., a Petersburg-based rental company that contracted in 1994 with Defendant's company, EBS, for debt collection services. This "authorization and consent," the Defendant maintains, is pursuant to a Collection Services Agreement between the Defendant and G.E. Matthews.( See Collection Services Agreement, attached to Def's Mem. in Resp. to Pl.'s Mot. For Partial Summ. J.)
This Court finds as a matter of law that the Collection Services Agreement submitted by the Defendant was no longer in effect on Feb. 16, 2000, the day Attorney Michael Champlin filed the garnishment gummons against the Plaintiff on Defendant's behalf. By its own terms, theCollection Services Agreement lasted for one year — Jan. 12, 1994 through Jan. 12, 1995. Paragraph 16 of the Agreement provides for automatic renewal "for another term" unless either party cancels. Because the Defendant has submitted no evidence of a subsequent agreement, and because the Agreement submitted could not have lasted, by its own terms, past Jan. 12, 1996, this Court finds that no contract was in effect between the Defendant and G.E. Matthews at the time the garnishment summons was filed. In addition, the record contains independent evidence that G.E. Matthews had, in fact, ended its relationship with Vest and EBS before the subject garnishment summons was issued, and did not become aware until March 2000 that Vest and EBS were continuing to collect on its accounts. ( See Mem. of Law in Supp. of Pl.'s Mot. For Partial. Summ. J., Affidavit of John Brockwell, Pl.'s Ex. D. See also Pl.'s Rebuttal Mem. of Law in Supp. of Pl's Mot. For Partial Summ. J., Pl.'s Ex. A).
Therefore, this Court finds that Defendant Robert Vest did engage in the Unauthorized Practice of Law and violated the FDCPA, 15 U.S.C. § 1692e(5) and e(10), by hiring an attorney to file a garnishment summons against the Plaintiff without the knowledge, authorization or consent of G.E. Matthews, the party to whom the money was owed. In light of this finding, there is no reason to address the Plaintiff's remaining allegations.
The record contains no evidence that the attorney, Michael Champlin, knowingly engaged in any violation.
ANALYSIS
Summary judgment is only appropriate when there does not exist a genuine dispute of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). A factual dispute is genuine if "a reasonable jury could return a verdict for the non-moving party." Id.. at 248.
For a motion for summary judgment to be denied, Rule 56(e) of the Federal Rules of Civil Procedure requires that specific facts be set forth showing a genuine issue for trial. Mere allegations and denials within the pleadings are insufficient for this purpose. In this case, Defendant Robert Vest argues that he had authority and consent to hire an attorney to file a garnishment summons against the Plaintiff based on a contract that this Court finds to be defunct as a matter of law. Defendant Vest also argues that his failure to turn over monies he collected on behalf of G.E. Matthews was "based on a computer coding error in the filing system." ( See Def's Mem. In Resp. to Pl's Mot. For Partial Summ. J., p. 4. See also: Id., Aff. of Robert Vest). Because no evidence supporting this latter assertion has been offered by the Defendant, this Court is not persuaded that a genuine issue exists in regard to the issue. Therefore, having considered the pleadings and deeming it proper and just to do so, it is hereby ORDERED that the Plaintiff's motion for Partial Summary Judgment against the Defendant Robert Vest is
GRANTED.
15 U.S.C. § 1692(k) imposes civil liability on debt collectors who violate provisions of the Act. The Plaintiff seeks an award of statutory damages, costs, expenses and attorney's fees. The Plaintiff seeks a statutory award pursuant to 15 U.S.C. § 1692k(a)(2)(A) which entitles the Plaintiff to relief in the form of damages an amount up to $1,000. When considering whether to award such relief, the Court is required to take into account "the frequency and persistence of noncompliance, and the extent to which such noncompliance was intentional." 15 U.S.C. § 1692k(b)(1).
This is the third lawsuit filed in this Court against Robert Vest and his collection agency, EBS, in four years. The most recent case, Coleman v. EBS, Eva Vest and Robert Vest, Civil No. 3:99CV194, also resulted in summary judgment for the plaintiff. Two previous lawsuits, Wingfield v. EBS, Civil No. 3:97CV182 and Wooden v. EBS, Civil No. 3:97CV875, settled adversely to Robert Vest's company. The Court therefore concludes that noncompliance has been frequent, persistent and intentional, and that the imposition of the maximum sanction is fully justified. of special note and concern to this Court is that the Defendant's violation of the Act in this case occurred within months of the entry of summary judgment inColeman v. EBS, a case based on the same kind of violative conduct at issue in the present matter. Such a history clearly supports this Court's finding that the Defendant's conduct has been frequent, persistent and intentional, and that this most recent reprehensible incident merits the maximum sanction.
The amount of $1,000, the maximum statutory damages under the Act, is accordingly awarded to the Plaintiff. The additional amount of $650 in actual damages is also awarded to the Plaintiff as well as reasonable attorney's fees and costs.
As of September 15, 2000, the Defendants had paid G.E. Matthews only $100 of the $750 they collected from the Plaintiff. ( See Pl's Rebuttal Mem. of Law in Supp. of Pl's Mot. for Summ. J., Pl's Ex. G). Although the Defendants maintain that their contract with G.E. Matthews entitles them to keep $400 of the money they collected from the Plaintiff, this Court has found that this contract was no longer in force at the time Defendants collected monies from the Plaintiff. Therefore, the Court finds Plaintiff is entitled to actual damages in the amount of the remaining $650 collected from him by the Defendants.
An appropriate order will issue.