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Wells v. LF Noll, Inc.

United States District Court, N.D. Iowa, Eastern Division

October 30, 2019

STEVEN WELLS and TERESA WELLS, Plaintiffs,
v.
LF NOLL, INC. and DECK LAW, PLC, Defendants.

          ORDER

          C.J. Williams United States District Judge

         TABLE OF CONTENTS

         I. SUMMARY JUDGMENT STANDARD ............................................... 2

         II. FACTUAL BACKGROUND ............................................................. 5

         III. PROCEDURAL HISTORY .............................................................. 10

         IV. ANALYSIS .................................................................................. 11

         A. Debt Collector ...................................................................... 11

         B. Violation of 15 U.S.C. § 1692g(a) .............................................. 16

         C. Violations of 15 U.S.C. § 1692e(10) ........................................... 20

         1. Claims against Both NCS and DeckLaw ............................... 21

         2. Claim Against DeckLaw Only ........................................... 23

         D. Violation of 15 U.S.C. § 1692e(11) ............................................ 25

         E. IDCPA Claims ...................................................................... 25

         V. CONCLUSION ............................................................................. 26

         This matter is before the Court on the parties' cross-motions for summary judgment. On July 19, 2019, plaintiffs moved for summary judgment. (Doc. 13). Defendants filed a timely resistance, which included a response to plaintiffs' statement of material facts and defendants' statement of additional material facts. (Doc. 14). Plaintiffs filed a timely response to defendants' statement of additional facts and a supplemental appendix but did not reply to defendants' legal arguments. (Doc. 16). Defendants also moved for summary judgment. (Doc. 15). Plaintiffs filed a timely resistance. (Doc. 17). Plaintiffs' resistance did not respond to defendants' statement of material facts as required by Local Rule 56(b), and the Court ordered plaintiffs to file a response in compliance with the Local Rules. (Doc. 19). Plaintiffs complied with the Court's order and filed a response to defendants' statement of material facts. (Doc. 20). Defendants filed a timely reply to plaintiffs' resistance. (Doc. 18). None of the parties have requested oral argument, and the Court considers this matter fully submitted. For the reasons stated below, defendants' Motion for Summary Judgment is granted as to Counts I-III and denied as moot as to Counts IV-VI. Plaintiffs' Motion for Summary Judgment is denied as to Counts I-III and denied as moot as to Counts IV-VI. Counts IV-VI are dismissed without prejudice.

         I. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When asserting that a fact is undisputed or is genuinely disputed, a party must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Alternatively, a party may “show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B).

         A fact is “material” if it “might affect the outcome of the suit under the governing law . . ..” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). “An issue of material fact is genuine if it has a real basis in the record, ” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted), or “when a reasonable jury could return a verdict for the nonmoving party on the question, ” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (internal quotation marks and citation omitted). Evidence that presents only “some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), or evidence that is “merely colorable” or “not significantly probative, ” Anderson, 477 U.S. at 249-50, does not make an issue of fact genuine. In sum, a genuine issue of material fact requires “sufficient evidence supporting the claimed factual dispute” that it “require[s] a jury or judge to resolve the parties' differing versions of the truth at trial.” Id. at 249 (citation and internal quotation marks omitted).

         The party moving for summary judgment bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citation omitted). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or other evidence designate specific facts showing that there is a genuine issue for trial. See Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005).

         In determining whether a genuine issue of material fact exists, courts must view the evidence in the light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that can be drawn from the facts. Tolan v. Cotton, 572 U.S. 650, 651 (2014); Matsushita, 475 U.S. at 587-88 (citation omitted); see also Reed v. City of St. Charles, Mo., 561 F.3d 788, 790 (8th Cir. 2009) (stating that in ruling on a motion for summary judgment, a court must view the facts “in a light most favorable to the non-moving party-as long as those facts are not so ‘blatantly contradicted by the record . . . that no reasonable jury could believe' them” (alteration in original) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007))). Although a court must view the facts in the light most favorable to the nonmoving party, it “need not ‘accept unreasonable inferences or sheer speculation as fact.'” Gilani v. Matthews, 843 F.3d 342, 349 (8th Cir. 2016) (quoting Reed, 561 F.3d at 791). A court does “not weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004) (citation omitted). “Rather, the court's function is to determine whether a dispute about a material fact is genuine . . ..” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).

         When considering cross motions for summary judgment a court must consider each motion separately. Thompson-Harbach v. USAA Fed. Sav. Bank, 359 F.Supp.3d 606, 615 (N.D. Iowa 2019). Thus, courts view the record in the light most favorable to plaintiffs when considering defendants' motion, and the court views the record in the light most favorable to defendants when considering plaintiffs' motion. Weber v. Travelers Home & Marine Ins. Co., 801 F.Supp.2d 819, 825 (D. Minn. 2011). The presentation of cross motions for summary judgment does not mandate that a court grant summary judgment in favor of one side or the other. Hot Stuff Foods, LLC v. Houston Cas. Co., 771 F.3d 1071, 1076 (8th Cir. 2014). “The granting of one [cross] motion [for summary judgment] does not necessarily warrant the denial of the other motion, unless the parties base their motions on the same legal theories and same set of material facts.” Stewart v. Dollar Fed. Sav. & Loan Ass'n, 523 F.Supp. 218, 220 (S.D. Ohio 1981); see also We Are Am. v. Maricopa Cty. Bd. of Sup'rs, 297 F.R.D. 373, 381 (D. Ariz. 2013).

         II. FACTUAL BACKGROUND

         The parties' motions for summary judgment are based on the same legal theories. Defendants' Motion for Summary Judgment addresses the legal theories set forth in plaintiffs' Motion for Summary Judgment. Plaintiffs' Response to Defendants' Summary Judgment Motion, in turn, largely incorporates plaintiffs' own arguments from their Motion for Summary Judgment. (Doc. 17). As set forth below, even drawing all factual inferences supported by the record in plaintiffs' favor, defendants are entitled to summary judgment on Counts I-III. Given that the parties' motions are premised on the same legal theories, granting defendants' Motion for Summary Judgment also requires that the Court deny plaintiffs' Motion for Summary Judgment. See Stewart, 523 F.Supp. at 220; We Are Am., 297 F.R.D. at 381. The Court, thus, need not make separate findings of fact for each motion. The Court will make its findings of fact as to defendants' Motion for Summary Judgment, drawing all inferences supported by the record in plaintiffs' favor. The Court will discuss additional facts below as they become relevant to the analysis.

         Defendant LF Noll, Inc. is a debt collector and does business under the name Noll Collection Service, or NCS (“NCS”). (Doc. 15-2, at 1). On September 23, 2014, NCS mailed plaintiffs a written correspondence about a debt of $2, 493.42 that plaintiffs owed to the Boys and Girls Home (“debt”). (Id.). NCS mailed the letter to plaintiffs at PO Box 206, Marble Rock, IA. (Id.). The letter included the amount of the debt, and the name of the creditor. (Docs. 15-2, at 1-2; 15-3, at 11). The letter advised plaintiffs that upon written request within thirty days NCS would provide plaintiffs the name and address of the original creditor if different than the current creditor. (Id.). The letter also advised plaintiffs that they had thirty days to dispute the debt and that NCS would provide verification of the debt if plaintiffs disputed it. (Id.). The letter further informed plaintiffs that if they did not dispute the debt, the debt would be assumed to be valid. (Id.).

         Plaintiffs entered a payment plan with NCS and began making payments on the debt. (Docs. 13-1, at 3; 15-2, at 2). Plaintiffs stopped making payments with $1, 443.42 remaining on the debt (“remaining balance”). (Doc. 15-2, at 2). NCS performed a “skip trace” search to locate plaintiffs' physical address, rather than their PO box. (Doc. 15-2, at 2). NCS performed the skip trace because it believed it needed plaintiffs' current physical address to serve plaintiffs if NCS filed a small claim to collect the remaining balance. (Id.).[1] The skip trace stated that plaintiffs' physical address was 912 East Herold Avenue, Des Moines, Iowa. (Id.). NCS mailed a Notice of Right to Cure Default to the Herold Avenue address on May 1, 2017. (Docs. 15-2, at 2; 15-3, at 12). Plaintiffs never received the Notice of Right to Cure Default. (Doc. 13-1, at 3).[2] NCS did not receive payment or otherwise hear from plaintiffs for several months. (Doc. 15-2, at 2).

         After mailing the Notice of Right to Cure Default, NCS received a notice from the United States Post Office that a person named Steven Wells had moved from the Herald Avenue address to 1109 Caulder Avenue, Des Moines, Iowa. (Doc. 15-2, at 3). At all times relevant to this case, plaintiffs lived in Marble Rock, Iowa, not the Herold Avenue or Calder Avenue addresses in Des Moines, Iowa. (Docs. 13-2, at 13-14). It appears based on the record that a different individual named Steven Wells, not plaintiff Steven Wells, resided at the Herald Avenue and Calder Avenue addresses in Des Moines. After mailing the Notice of Right to Cure Default, NCS did not receive any communication or further payment from plaintiffs, so NCS retained defendant DeckLaw PLC (“DeckLaw”) to file a small claims action against plaintiffs to recover the remaining balance. (Id.). NCS provided DeckLaw the Caulder Avenue address as the plaintiffs' address. (Id.).

         On May 31, 2017, DeckLaw filed an Original Notice and Petition for Money Judgment (“small claims petition”) in the Iowa District Court for Polk County, Case No. SCSC599389 (“small claims action”) on behalf of NCS and against plaintiffs. (Doc. 15-3, at 23). The small claims petition sought damages in the amount of $1, 443.42 and advised plaintiffs that “[j]udgment may include the amount requested plus interest and court costs.” (Id.). DeckLaw also filed a Verification of Account Identification of Judgment Debtor and Certificate Re Military Service (“verification of account”) as to both plaintiffs. (Id., at 16-22). The verifications of account listed the Caulder Avenue address for plaintiffs. (Id.). Defendants assert, and plaintiffs do not dispute, that DeckLaw was not required to mail plaintiffs the verifications of account. (Docs. 15-2, at 3; 20, at 5).

         Defendants were unable to serve plaintiffs at either of the Des Moines addresses because plaintiffs did not reside there. (Doc. 13-2, at 22-23). On January 10, 2018, defendants personally served plaintiffs with the small claims petition at their home address in Marble Rock, Iowa. (Doc. 15-3, at 25-26). On January 23, 2018, plaintiffs mailed a check to NCS for $1, 443.42, the principle amount demanded in the small claims petition. (Docs. 1, at 4; 6, at 3). The check was noted “paid in full.” (Doc. 15-2, at 4-5). On January 31, 2018, at 9:21 a.m., the Iowa District Court for Polk County entered a default judgment in favor of NCS and against ...


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