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Lavear v. Barton

United States District Court, E.D. Missouri, Eastern Division

February 17, 2015




This matter is before the Court on Defendant's Motion to Dismiss. [Doc. No. 44]. Plaintiff has filed a response in opposition to the motion. [Doc. No. 49]. Defendant has filed a Reply. [Doc. No. 53]. For the reasons set forth below, the Motion is denied without prejudice.

Facts and Background[1]

Plaintiff Bradley Lavear brings this action under the Fair Debt Collection Practices Act, 15 U.S.C. ยง 1692, et seq. ("FDCPA"), alleging that Defendant Dennis J. Barton, III, engaged in practices proscribed by the FDCPA in his efforts to collect a debt allegedly due to St. Anthony's Medical Center. Additionally, Plaintiff brings state law claims for abuse of process and conversion.

Plaintiff claims that, sometime prior to October 4, 2012, St. Anthony's assigned Plaintiff's debt to former defendants Roger Weiss and Consumer Adjustment Company, Inc. ("CAC"), who in turn utilized Defendant Barton, an attorney, to collect on the debt. Defendant Barton first attempted to do so by sending a collection letter to Plaintiff and calling Plaintiff. In both the letter and the call, Defendant Barton indicated that he represented St. Anthony's.

At the time the collection letter was sent, Defendant Barton had made no professional determination regarding the character or validity of the debt. Instead, his employees, who are non-attorney bill collectors, signed his name (with his authorization) to make it appear that he was personally involved, and used his letterhead.

On October 4, 2014, Defendant Barton, again identifying himself as an attorney for St. Anthony's, filed a lawsuit against Plaintiff in the Circuit Court for Jefferson County under the caption, "St. Anthony's Medical Center v. Bradley Lavear." Contrary to Defendant Barton's representations in the collection letter, phone call, and state court lawsuit, St. Anthony's has never employed, or had a contractual relationship with Defendant Barton in any capacity. General counsel for St. Anthony's has so attested in an affidavit, and has so represented in a letter to Plaintiff Lavear's counsel. Further, Plaintiff alleges that St. Anthony's had no interest in the debt because it had assigned all of its rights to the debt to former defendants Weiss and CAC. For all of these reasons, Plaintiff alleges Defendant Barton's collection letter, phone call, and state court law suit were deceptive and misleading.

Plaintiff and Defendant Barton signed a consent judgment on January 8, 2013 in the amount of $2, 447.10, with Defendant Barton again representing to Plaintiff that he was counsel for St. Anthony's. Plaintiff would not have signed the consent judgment had he known that a debt collector like CAC was behind the lawsuit.

Under the terms of the consent judgment, Plaintiff was to make $100 monthly payments. Plaintiff failed to maintain the payment schedule, and Defendant Barton began garnishing his wages. The garnishment paperwork Defendant Barton filed with the state court identified the party obtaining the garnishment as St. Anthony's and indicated that Defendant Barton represented St. Anthony's. In fact, Defendant Barton and former defendant CAC were garnishing and keeping Plaintiff's wages. As of the date of Plaintiff's Amended Complaint, far more had been garnished from Plaintiff's wages-$3, 021.11-than the amount of the judgment ($2, 447.10) combined with accrued interest.

In February 2013, former defendant Weiss began negotiations to transfer many of former defendant CAC's acquired collection debts to a company called Senex Services. At an unspecified date thereafter, Plaintiff's alleged debt to St. Anthony's was transferred to Senex. Thus, Plaintiff alleges that as of February 2013, Defendant Barton knew or should have known that Senex would be collecting on Plaintiff's debt and that Defendant Barton's efforts to collect on the debt would be duplicative. Regardless, Defendant Barton proceeded to garnish Plaintiff's wages in the name of St. Anthony's for approximately one year.

It was not until December 2013 that Plaintiff learned, or could have learned, for the first time that Defendant Barton did not actually represent St. Anthony with respect to the debt at issue.


Defendant makes several arguments for dismissal. Two of his most prominent arguments are that the Amended Complaint should be dismissed for lack of jurisdiction pursuant to the Rooker-Feldman doctrine, [2] and his FDCPA claims should be dismissed as untimely under the FDCPA's one-year statute of limitations.[3]

There are eleven actions-including the case currently before the Court-which have been filed against Defendant Barton in this district. All allege nearly identical facts.[4] All but three of the cases were filed by the same counsel that represents Plaintiff Lavear in this case. In most of these cases, Defendant Barton has moved for dismissal, often arguing lack of jurisdiction based ...

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