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Kalebaugh v. Berman & Rabin, P.A.

United States District Court, District of Kansas

August 28, 2014

MATTHEW KALEBAUGH, Plaintiff,
v.
BERMAN & RABIN, P.A., Defendant. JESSIE L. RAY, Plaintiff,
v.
BERMAN & RABIN, P.A., Defendant.

MEMORANDUM AND ORDER

Daniel D. Crabtree United States District Judge

Plaintiffs Matthew Kalebaugh and Jessie L. Ray each filed a lawsuit against Defendant Berman & Rabin, P.A., alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. On September 24, 2013, the Court consolidated the two cases (Doc.7).[1] This matter is before the Court on plaintiff Jessie L. Ray’s Motion for Summary Judgment (Doc. 10), defendant’s Motion for Summary Judgment against plaintiff Jessie L. Ray (Doc. 12), plaintiff Matthew Kalebaugh’s Motion for Summary Judgment (Doc. 15), and defendant’s Motion for Summary Judgment against plaintiff Matthew Kalebaugh (Doc. 17). For the reasons explained below, the Court grants in part and denies in part all four motions.

I. Uncontroverted Facts

The following facts are uncontroverted.[2] Plaintiff Ray owed an outstanding balance on a credit card to Citibank, N.A (“Citibank”). Citibank hired defendant to collect the debt owed by plaintiff Ray. In its efforts to collect that debt, defendant sent plaintiff Ray a letter dated June 6, 2012.[3] In part, that letter stated: “Balance: $6, 871.02, attorney fees (where applicable), the exact amount to be determined by agreement between you and us or by a court.”[4]

Plaintiff Kalebaugh also owed a separate, outstanding balance on a credit card to Citibank, which, in turn, hired defendant to collect the debt owed by plaintiff Kalebaugh. In its efforts to collect that debt, defendant sent plaintiff Kalebaugh a letter dated October 4, 2012, [5]that was substantially similar to the letter sent to plaintiff Ray. In part, that letter stated: “Balance: $7, 872.73, attorney fees (where applicable), the exact amount to be determined by agreement between you and us or by a court.”[6]

When sending collection letters, defendant only includes the language regarding the possibility of attorney’s fees on accounts where the consumer agreed to pay attorney’s fees if the account is placed with an attorney for collection and the creditor has authorized defendant to file a lawsuit to collect the balance and attorney’s fees, if the account is not otherwise resolved.

On or about August 17, 2012, defendant filed a lawsuit in the District Court of Johnson County, Kansas, on behalf of Citibank against plaintiff Ray, seeking to obtain a judgment against plaintiff Ray for the outstanding balance due to Citibank and for reasonable attorney’s fees. Plaintiff Ray and Citibank stipulated to judgment against plaintiff Ray, and a Journal Entry of Judgment was entered on February 14, 2013.[7] The stipulated Journal Entry of Judgment granted judgment in favor of Citibank, “in the principal sum of $6, 871.02, plus reasonable attorney’s fees of $1, 030.65, plus interest on any judgment rendered at the rate of 12% per annum, and $124.50 for costs incurred.”[8]

On or about December 12, 2012, defendant filed a lawsuit in the District Court of Wyandotte County, Kansas, on behalf of Citibank against plaintiff Kalebaugh, seeking to obtain a judgment against plaintiff Kalebaugh for the outstanding balance due to Citibank, and for reasonable attorney’s fees. At the time the parties submitted their summary judgment briefing, that lawsuit was still pending and set for trial on November 18, 2013.

II. Legal Standard

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When it applies this standard, the Court views the evidence and draws inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (citing Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1245–46 (10th Cir. 2010)). “An issue of fact is ‘genuine’ ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id. (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson, 477 U.S. at 248)).

The moving party bears “both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (citing Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2003)). To meet this burden, the moving party “need not negate the non-movant’s claim, but need only point to an absence of evidence to support the non-movant’s claim.” Id. (citing Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).

If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof’” Id. (quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 248-49. “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992)).

Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327. Rather, it is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.’” Id. (quoting Fed.R.Civ.P. 1).

The Court applies the same standard on cross motions for summary judgment. Each party bears the burden of establishing that no genuine issue of material fact exists and its entitlement to judgment as a matter of law. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). Cross motions for summary judgment “are to be treated separately; the denial of one does not require the grant of another.” Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). But where the cross motions overlap, the Court may address the legal arguments together. Berges v. Standard Ins. Co., 704 F.Supp.2d 1149, 1155 (D. Kan. 2010) (citation omitted). In this case, the legal issues and arguments presented by each summary judgment motion are almost identical. Therefore, the Court addresses the legal issues together.

III. Analysis

Plaintiffs contend that defendant violated three statutory provisions of the FDCPA. First, plaintiffs claim that defendant failed to state accurately the amount of the debt as required by 15 U.S.C. § 1692g(a)(1). Second, plaintiffs assert that defendant’s collection letters demanded attorney’s fees not yet incurred in violation of 15 U.S.C. § 1692e(2)(A) and 15 U.S.C. § 1692e(5) which respectively prohibit the false representation of the “character, amount, or legal status of any debt” and a “threat to take any action that cannot legally be taken or that is not intended to be taken.” The Court addresses each argument in turn below.

A. FDCPA Standard

“The Fair Debt Collection Practices Act establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection, and requires that such debt collectors advise the consumers whose debts they seek to collect of specified rights.” DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001). One of the purposes of the FDCPA is to “eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). To further that purpose, the FDCPA prohibits debt collectors from using “any false, deceptive, or misleading representation or means in connection ...


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