The opinion of the court was delivered by: David S. Doty, Judge United States District Court
This matter is before the court upon the motion for summary judgment by defendant Messerli & Kramer P.A. (M&K). Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants the motion.
This Fair Debt Collection Practices Act (FDCPA) dispute arises out of M&K's representation of Discover Bank (Discover) in a debt-collection action against plaintiff Heather J. Hemmingsen (Hemmingsen) and non-party George Hemmingsen in Minnesota state court. In August 2002, George Hemmingsen applied for a Discover credit card, which was issued to him in September 2002. On October 19, 2002, he married plaintiff. Compl. ¶ 10. He added plaintiff as a card obligor on November 9, 2002. Pappas Aff. ¶ 10. Plaintiff never requested that her name be added to the card, never received a card with her name, and never signed an application. Hemmingsen Dep. 15.
The couple separated on February 10, 2005. Compl. ¶ 10. In the marital termination agreement, Hemmingsen indicated that the Discover account was in "both" her name and her husband's name, was used for "living expenses," and that the balance owed was $3,286.17. Hemmingsen Dep. 32-33, 55-56. She does not remember seeing any account statements, and learned the specific balance by asking her husband. Id. at 57. Under the divorce decree, George Hemmingsen was responsible for the debt. Roy Aff. Ex. Q. He failed to make payments, and the account went into default.
On July 7, 2007, Discover retained M&K to collect the debt. Pappas Aff. ¶ 4. Discover provided M&K the account number and indicated that Hemmingsen was a joint card holder. Pappas Dep. 12,
27. M&K acquired account statements bearing Hemmingsen's name, a check to Discover signed by Hemmingsen from the couple's joint checking account, and the marital termination agreement. See Pappas Aff. Ex. D; Pappas Dep. 49; Hemmingsen Dep. 47; Roy Aff. Ex. O, at 3, 5. M&K knew that Hemmingsen never signed an application for the card and that she was added by telephone. Pappas Dep. 53.
M&K sued Hemmingsen and her then ex-husband in state court to recover $4,322.92. Hemmingsen denied liability for the debt. Hemmingsen and Discover both moved for summary judgment. To support its motion, M&K submitted the affidavit of Robert Adkins, the custodian of Discover's records for the account, who claimed to have "personal knowledge of the matters." Roy Aff. Ex. N. M&K also submitted a memorandum of law, claiming that Hemmingsen
(1)"acknowledged the Account was held by both Defendants with an outstanding balance"; (2) accepted and used the credit account;
(3) "unequivocally manifested acceptance of the Agreement terms"; (4) "used the Account for purchases, balance transfers, or cash advances"; (5) received "detailed monthly billing statements and ... retained these statements without question"; and (6) "made full or partial payments on the Account over the entire billing period." Compl. ¶ 28.
On March 24, 2009, the state court granted Hemmingsen's motion for summary judgment, denied Discover's motion for summary judgment, and dismissed all Discover's claims with prejudice. In June 2009, Hemmingsen filed the instant action alleging violations of the FDCPA, malicious prosecution, abuse of process, and attorney misconduct. M&K moves for summary judgment. The court now considers the motion.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(c)*fn1 ; see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material only when its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that it could cause a ...