PHYLLIS CLARK, on behalf of herself and all similarly situated persons, Plaintiff,
MAIN STREET ACQUISITION CORP., Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 24)
TIMOTHY S. BLACK, District Judge.
This civil action is before the Court on Defendant Phyllis Clark's Motion for Summary Judgment (Doc. 24), and the parties' responsive memoranda (Docs. 25, 27).
I. BACKGROUND FACTS
Plaintiff opened a credit card account with Household Bank ("Household"). (Doc. 23 at 21, 82). Plaintiff used the account, but, according to Defendant, defaulted on her credit obligations. (Doc. 23 at 22; Doc. 13 at ¶ 8). Eventually, Household sent Plaintiff a letter stating it was closing the account but the balance was still owed and then sold the account to Defendant Main Street Acquisition Corp as an assignee of Household. (Doc. 23 at 61; Doc. 24-3 at ¶¶ 3, 6-7).
Defendant hired a law firm, Slovin & Associates Co., L.P.A. ("Slovin"), to represent Defendant in the collection of the account. (Doc. 24-4). Slovin sent a letter to Plaintiff explaining its retention by Defendant, and Plaintiff responded that she did not recall the debt and asked for proof from Defendant. (Doc. 24-4; Doc. 24-5).
Plaintiff had discarded all records regarding the account. (Doc. 23 at 64, 67, 90). Slovin responded with a packet of documentation regarding the debt and the sale of the account to Defendant. (Doc. 24-6; Doc. 23 at 75). An offer and counteroffer were exchanged regarding settlement of the debt, but no settlement was reached. (Doc. 24-6; Doc. 24-8). Slovin then filed suit in Kentucky state court on behalf of Defendant against Plaintiff, attaching to the complaint the affidavit of Jason Harrison. (Doc. 24-9). During the pendency of this state court case, Slovin served requests for admissions on Plaintiff. (Doc. 24-10).
Plaintiff filed this case under the federal Fair Debt Collection Practice Act ("FDCPA"), codified at 15 U.S.C. 1692 et seq. Plaintiff asserts two alleged violations of the FDCPA: (1) "intentional filing of false affidavits for the purposes of obtaining judgments against debtors in collection law suits and coercing debtors into paying alleged debts" (Doc. 13 at 2), and (2) allowing Defendant's outside legal counsel to serve "unfair and deceptive" requests for admission in a Kentucky state court case. ( Id. )
There is no dispute about the contents of the affidavit and the requests for admission. The parties have each taken depositions and conducted written discovery addressing the merits of this case.
II. UNDISPUTED FACTS
1. Plaintiff opened a credit card account with Household. (Doc. 23 at 21; 82).
2. Plaintiff used the account. (Doc. 23 at 22; Doc. 13 at ¶ 8).
3. Plaintiff does not recall disputing any of the charges on the account. (Doc. 23 at 75).
4. Eventually, Plaintiff received a letter from Household stating that it was closing the account, and Plaintiff still owed the outstanding balance. ( Id. at 61).
5. Defendant hired Slovin to represent it concerning collection of the account. ( See Doc. 24-4).
6. Slovin sent written correspondence to Plaintiff explaining that Slovin had been retained to represent Defendant on the account. ( Id. ) That letter identified the account as follows:
Creditor: MAIN STREET ACQUISITION CORP. Original Creditor: HSBC BANK NEVADA NA Balance Due: $1, 439.26 as of today's date
( Id. )
7. Upon review of that letter from Slovin, Plaintiff did not recognize the name "Main Street Acquisition Corp., " but she remembered that she had a Household account. (Doc. 23 at 89).
8. Plaintiff did not recall if she owed $1, 439.26 because she had already discarded all of her records concerning the account. ( Id. at 64, 67, 90).
9. She had discarded the letter from Household which said the account was closed. ( Id. at 61).
10. In response to Slovin's initial letter, Plaintiff wrote the following:
April 22, 2011
I am in receipt of your letter dated April 1, 2011 indicating that you are attempting to collect on a debt that I supposedly owe to Main Street Acquisition. I am not aware of entering into any contract or agreement with this company. I am including a copy of your letter for your reference and I request proof of a contract signed by me or agreement of any sort with this company. Once proof of my owing this debt is offered to me, I will be happy to discuss this matter with you further. If proof cannot be provided, I would respectfully ask that you consider this matter closed.
I will await contact from you indicating proof or notice of closing this matter.
Thank you for your time and attention to this matter.
Sincerely, Phyllis Werderman 6500 U S HWY 641 ...