United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on competing motions for summary
judgment. Plaintiff Thomas Wade brings this action against
Defendants Dennis J. Barton, and the Barton Law Group, LLC
(“Defendants”), for alleged violations of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.
(“FDCPA”). The motions are fully briefed and
ready for disposition.
relevant facts are not disputed. On July 24, 2014, ARC sued
Plaintiff in the Associate Circuit Court for St. Charles
County, Missouri to recover an outstanding balance on
Plaintiff's SLUCare account. ARC was the assignee of the
debt. Defendants are regularly engaged in the collection of
consumer debts and represented ARC in the state court action.
Plaintiff received service of the summons and complaint in
the state court action, but did not answer or otherwise
respond. On September 16, 2014, Defendants appeared in state
court on behalf of ARC and presented a proposed default
judgment seeking judgment against Plaintiff in the amount of
the outstanding principal account balance of $1, 203.00 and
$190.14 in interest. The state court granted ARC's motion
for default judgment, and entered the proposed judgment.
judgment is appropriate when no genuine issue of material
fact exists in the case and the movant is entitled to
judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The initial burden
is placed on the moving party. City of Mt. Pleasant, Iowa
v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th
Cir. 1988). If the record demonstrates that no genuine issue
of fact is in dispute, the burden then shifts to the
non-moving party, who must set forth affirmative evidence and
specific facts showing a genuine dispute on that issue.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). In determining whether summary judgment is
appropriate in a particular case, the evidence must be viewed
in the light most favorable to the nonmoving party.
Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616,
619 (8th Cir. 1988). When both parties move for summary
judgment, the Court must analyze each motion individually and
on its own merits. Wermager v. Cormorant Township
Bd., 716 F.2d 1211, 1214 (8th Cir. 1983).
FDCPA is designed “to eliminate abusive debt collection
practices by debt collectors” and “to promote
consistent state action to protect consumers against debt
collection abuses.” 15 U.S.C. § 1692. Section
1692e prohibits the use of “any false, deceptive, or
misleading representation or means in connection with the
collection of any debt” including, “[t]he false
representation of the character, amount, or legal status of
any debt.” §§ 1692e, e(10). Section 1692f
prohibits a debt collector from employing any “unfair
or unconscionable means to collect or attempt to collect any
debt, ” with § 1692f(1) specifically prohibiting
“[t]he collection of any amount (including any
interest, fee, charge, or expense incidental to the principal
obligation) unless such amount is expressly authorized by the
agreement creating the debt or permitted by law.”
FDCPA is liberally construed to protect consumers. Layton
v. CACH, LLC, No. 4:15CV00752 AGF, 2015 WL 6736121, at
*4 (E.D. Mo. Nov. 4, 2015). The Act's prohibitions apply
to collection efforts through litigation, but at the same
time, the Act seeks to preserve the judicial remedies of
creditors. Id. (citation omitted). The Eighth
Circuit applies the “unsophisticated consumer”
test in evaluating whether a debt collector's practices
are false, misleading, or deceptive. Id. (citation
omitted). The test “is designed to protect consumers of
below average sophistication or intelligence, ” but
also contains an “objective element of
reasonableness.” Id. (citation omitted). The
determination of whether a plaintiff states a claim under the
FDCPA based on litigation conduct is best decided on a
case-by-case basis. Id. at 819.
motion for summary judgment
threshold matter, Defendants have moved for summary judgment
on the grounds that Plaintiff's complaint is time-barred
because it was filed on August 31, 2015, one year and
eighteen days after Plaintiff was served, on August 13, 2014,
with the petition and affidavit in the state court collection
action (Doc. No. 52 at 2-5). Defendants previously raised
this same argument in a motion to dismiss (Doc. No. 11). The
Court denied Defendants' motion, explaining that the
one-year statute of limitations under the FDCPA is triggered
when the debt collector has had its last opportunity to
comply with the FDCPA, which in this case was when they
obtained default judgment against Plaintiff on September 16,
2014. (Doc. No. 27 at 3, citing Coble v. Cohen &
Slamowitz, LLP, 824 F.Supp.2d 568, 570 (S.D.N.Y. 2011)
(holding that the debtors' FDCPA claims accrued, and the
one-year limitations period began to run, when the consumer
collection law firm obtained default judgments against them
in state-court debt collection actions).
state they have “collected more evidence” that
now supports summary judgment (Doc. No. 52 at 2 n.2);
however, upon review, the Court finds nothing new in the
evidence submitted by Defendants on the record that is
relevant to the timeliness issue. Moreover, the Court is not
persuaded by Defendants' attempts to distinguish
Coble from the instant case. Defendants' cross
motion for summary judgment will, therefore, be denied.
motion for summary judgment
argues summary judgment is appropriate in this case because
Defendants had no authority to collect prejudgment interest
on his SLUCare account. He notes that the Affidavit of
Account attached to the state court action was silent as to
prejudgment interest, and asserts that Defendants did not
consult ARC prior to collecting prejudgment interest (Doc.
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