United States District Court, E.D. Missouri, Eastern Division
JESSE L. MORGAN, Plaintiff,
THE VOGLER LAW FIRM, P.C., et al., Defendants,
MEMORANDUM & ORDER
STEPHEN N. LIMBAUGH, JR. JUDGE
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.
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.
has thus moved for summary judgment as to the liability on
his two counts. The defendants oppose the motion. Each count
is discussed below.
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
This is to make demand for our client of the above stated
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.
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.
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
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.
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.
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.
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.
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.
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)).
seeks summary judgment on each of the two remaining Counts.
Count I -- Violations of the FDCPA, 15 U.S.C. § 1692,
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., ...