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Backlund v. Messerli & Kramer, P.A.

United States District Court, D. Minnesota

August 9, 2013

ERIC BACKLUND and SHANNON BACKLUND, Plaintiffs,
v.
MESSERLI & KRAMER, P.A. and STEVE DOE, Defendants

William T. Anderson, Chanhassen, MN, for plaintiffs.

Jennifer M. Zwilling and Derrick N. Weber, MESSERLI & KRAMER PA, Plymouth, MN, for defendants.

OPINION

JOHN R. TUNHEIM, United States District Judge.

Page 1011

MEMORANDUM OPINION AND ORDER

Plaintiffs Eric and Shannon Backlund allege that Defendants Messerli & Kramer, P.A. (" M& K" ) and M& K's representative, Steve Doe (" Steve" ), violated the

Page 1012

Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § § 1692 et seq. The Court granted in part Defendants' previous motion to dismiss. M& K now brings a motion for summary judgment on the remaining claims.

Because the Court finds that there is an issue of material fact regarding M& K's violation of certain provisions of the FDCPA, the Court will grant in part and deny in part M& K's motion. The Court will grant the motion with respect to the Backlunds' claims that the two notices of default sent to Eric Backlund on May 10, 2011, and May 27, 2011, violated 15 U.S.C. § 1692c(a)(2). The Court will deny M& K's motion with respect to the Backlunds' claim that comments made by Steve during the phone call with Shannon Backlund were prohibited by 15 U.S.C. § 1692c(a)(2). The Court will also deny the motion with respect to the Backlunds' claim that Eric Backlund was not properly served notice of intent to garnish, resulting in a violation of 15 U.S.C. § 1692f.

BACKGROUND

After the Backlunds failed to make timely payments on a debt with Capital One Bank (USA), N.A. (" Capital One" ), [1] M& K was hired to collect the money. ( See Second Decl. of Jennifer Zwilling, Ex. 1 (Dep. of Eric Backlund 31:1-2), Mar. 14, 2013, Docket No. 35.) Eric Backlund agreed to a payment plan for the debt in a November 2, 2010 stipulation, while represented by Erickson Law Group. ( Id. 63:18-23, 51:23-52:2, 52:14-21 & Ex. C.) Eric Backlund agreed to make monthly payments, payable to Capital One and mailed to M& K. ( Id. Ex. C ¶ 3.) The stipulation also provided that in the event of default, Eric Backlund would be provided with " a maximum of three" default notices and stated that if the default

continues for a period of ten (10) days after mailing of notice to Defendant(s) at Defendant(s) last known address . . . then, in that event, Defendant(s) hereby authorize(s) and empower(s) irrevocably William C. Hicks of MESSERLI & KRAMER P.A., or any other attorney designed by Plaintiff [Capital One] . . . to confess judgment against Defendant(s) in favor of Plaintiff . . . .

( Id., Ex. C ¶ ¶ 5-6.) The stipulation also provided that it could not " be altered or amended in any of its provisions except by the mutual written agreement of the Parties that is signed by both parties." ( Id., Ex. C ¶ 10.)

Prior to March 31, 2011, the Backlunds retained William Anderson (" Anderson" ) to represent them in their bankruptcy proceedings. (Second Zwilling Decl., Ex. 2 (Dep. of Shannon Backlund 25:6-14).) The Retainer Agreement with Anderson provides that it relates to " legal representation for you in pursuing your bankruptcy petition." (Second Zwilling Decl., Ex. 3 (" Retainer Agreement" ) at 1.) The Retainer Agreement provides that the Backlunds had to inform Anderson in writing of any significant creditor action. ( See id. at 2.) Eric Backlund believed that the representation also encompassed legal issues related to his debts and, in particular, his debt with M& K. (Aff. of Eric Backlund ¶ ¶ 1-2, Apr. 9, 2013, Docket No. 39.)

On March 31, 2011, Shannon Backlund called M& K. (Second Zwilling Decl. ΒΆ 12 & Ex. 4.) She first received a recorded message that included the warning that, " [i]f your call is regarding a collection ...


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