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Morgan v. The Vogler Law Firm, P.C.

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

October 3, 2017

JESSE L. MORGAN, Plaintiff,
v.
THE VOGLER LAW FIRM, P.C., et al., Defendants,

          MEMORANDUM & ORDER

          STEPHEN N. LIMBAUGH, JR. JUDGE

         Plaintiff brings this lawsuit against his former landlord Ronald K. Reynolds and law firm Vogler Law Firm, P.C., and others, that were involved in plaintiff's eviction and who filed a collection lawsuit against plaintiff. Remaining counts in this case are Count I for Violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), against the Vogler Law Firm, Vincent D. Vogler, and Vincent V. Vogler (“Vogler defendants”), and Count II for Violations of the Missouri Merchandising Practices Act, § 407.010 RSMo (“MMPA”) against Ronald Reynolds.

         Neither set of defendants filed an Answer to the counts remaining in plaintiff's Complaint after this Court addressed defendants' motion to dismiss. Defendants sought leave to file answers six months late and after the close of discovery, but this Court denied the defendants' motions for leave for the reasons stated in its Memorandum & Order. (#51). As a result, all the allegations in plaintiff's complaint, other than those related to the amount of damages, are deemed admitted by the defendants. Fed.R.Civ.P. 8(b)(6).

         Plaintiff has thus moved for summary judgment as to the liability on his two counts. The defendants oppose the motion. Each count is discussed below.

         I. Factual Background

         The following facts are taken from the complaint and are thus deemed admitted. Plaintiff Jesse Morgan resided at 7244 Rockspring Drive in St. Louis, Missouri from 2007 to 2015. The home was owned by Ronald Reynolds. Reynolds also owned a number of other properties in the St. Louis area that frequently required extensive repairs and maintenance. Reynolds hired plaintiff Morgan to perform repairs on Reynolds's various rental properties and, in return, Reynolds credited plaintiff for the value of the repairs against plaintiff's lease obligations. On December 12, 2014, the Vogler Law Firm sent plaintiff a collection letter (“Dunning Letter”) demanding payment of $21, 164.22 on behalf of Ron Reynolds. The Dunning Letter stated as follows:

This is to make demand for our client of the above stated sum.
Unless you notify this office in writing that you dispute the validity of this account or a portion thereof within the next 30 days, we will assume that the debt is valid.
If any portion of the debt is disputed, you should advise us within that period and we will provide you with verification of the debt.
Upon your written request within the 30 day period, this office will provide you with the name and address of the original creditor, if it differs from the name and address of the current creditor.

         The Dunning Letter was signed by Vincent D. Vogler. Reynolds had never sent plaintiff any delinquency notices, bills, or other correspondence claiming that plaintiff owed any money for unpaid lease payments. Plaintiff believed that he had complied with his agreement with Reynolds and that his rent payments satisfied his lease obligations in full.

         Plaintiff pleads that, in fact, he did not owe an outstanding balance to Reynolds on his lease obligations. Therefore, plaintiff disputed the debt by sending a letter to the Vogler Law Firm dated January 5, 2015. In response, on January 13, 2015, the Vogler Law Firm sent plaintiff a letter that attached a handwritten accounting of alleged unpaid rent that was dated February 28, 2013. The letter was again signed by Vincent D. Vogler, but plaintiff alleges that non-lawyer Vincent V. Vogler (not to be confused with attorney Vincent D. Vogler) was actually responsible for sending that letter and the December 12 letter. Notably, the signatures on the two letters do not resemble one another. Plaintiff alleges that the Vogler Law Firm did not actually verify the debt, but rather that it merely forwarded the documentation initially provided by Reynolds. Further, the handwritten accounting includes unpaid rents only through February 2013, nearly two years before defendants sent the December 12, 2014 collection letter, and plaintiff says the accounting showed plaintiff owed $14, 860 (not $21, 164.22 as indicated on the initial letter).

         Reynolds, through the Vogler Law Firm, filed a collection suit against plaintiff in St. Louis County on April 13, 2015, demanding $24, 972.00. They did not attach a written lease agreement to their petition because no such written agreement existed. Because the claim was based on an oral lease, the statute of limitations was five years, and plaintiff thus says that the claim for debts from June 2007 through April 2010 were time barred. Plaintiff also suggests that attorney Vincent D. Vogler had not reviewed the lawsuit and would not have filed the lawsuit with a facially time-barred claim.

         On June 18, 2015, Reynolds left a message on plaintiff's voicemail saying “I'm going to evict you. You better give me a call. I'm going to call the attorney - YOU'RE EVICTED. GET THE F[---] OUT!” Plaintiff was at the time living in the subject residence with his wife and children and began to fear for the safety of his family as a result of the hostile phone message.

         Plaintiff filed for bankruptcy as a result of Reynolds's collection suit because, although he did not owe the debt, he could not afford thousands of dollars it would cost to hire an attorney to defend the suit. On June 30, 2015, plaintiff filed for Chapter 7 bankruptcy protection. An automatic stay was thus in force pursuant to the United States Bankruptcy Code, which prohibited plaintiff's creditors and collectors from continuing to collect or to attempt to collect any debts. However, the collection lawsuit was set for a hearing on July 7, 2015, and Reynolds and his law firm moved for a default judgment in violation of the automatic stay. On July 9, 2015, and in further violation of the automatic stay, they filed a garnishment against plaintiff.

         Plaintiff's bankruptcy attorney contacted the Vogler Firm on July 9 and directed them to cease violating the automatic stay. The Vogler Firm promised to set the default judgment aside and filed a motion to do so on July 9, but they did not call their motion up for a hearing until October 27, 2015. In the meantime, the default judgment remained a matter of public record and decreased plaintiff's credit score. Plaintiff had to hire another law firm to enter an appearance on his behalf to effectuate the setting aside of the default judgment. The collection lawsuit was dismissed on October 27, 2015, as well.

         Plaintiff filed this lawsuit on November 4, 2015. As stated above, defendants have conceded the facts alleged in the complaint. Plaintiff has moved for summary judgment.

         II. Legal Standard

         Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that “there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). Because the defendant did not file a timely answer to the plaintiff's complaint, “defendant admitted those allegations, thus placing no further burden upon [p]laintiff to prove its case factually.” Burlington N. R. Co. v. Huddleston, 94 F.3d 1413, 1415 (10th Cir. 1996); see also Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010). However, “it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, ” as conclusions of law are not deemed admitted. Marshall, 616 F.3d at 852 (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2688 at 63 (3d ed.1998)).

         III. Discussion

         Plaintiff seeks summary judgment on each of the two remaining Counts.

         A. Count I -- Violations of the FDCPA, 15 U.S.C. § 1692, et seq.

         Plaintiff brings Count I for violations of the FDCPA against the Vogler defendants. To prevail, plaintiff must show that (1) plaintiff is a consumer, (2) the payment obligation defendant seeks to recoup was a “debt” as defined by the statute, (3) the defendant is a “debt collector” as defined by the statute, and (4) the defendant violated any of the protections afforded by the FDCPA. Dunham v. Portfolio Recovery Assocs., ...


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