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Racek v. Gurstel Chargo, P.A.

United States District Court, Eighth Circuit

September 11, 2013

Mark Racek and Mary Racek, Plaintiffs,
v.
Gurstel Chargo, P.A., and Asset Acceptance, LLC, Defendants.

Mark L. Vavreck, Esq., Martineau, Gonko & Vavreck, PLLC, counsel for Plaintiffs.

Spencer J. Seamans, Gurstel Chargo, P.A., counsel for Defendants.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

This matter is before the Court on a Motion for Partial Summary Judgment brought by Plaintiffs Mark and Mary Racek (Doc. No. 14), and a Motion for Summary Judgment brought by Defendants Gurstel Chargo, P.A. ("Gurstel") and Asset Acceptance, LLC ("Asset") (together, "Defendants") (Doc. No. 19.) For the reasons set forth below, the Court denies both motions.

BACKGROUND

In this action, Plaintiffs assert that the Defendants' garnishment of their joint bank account, which contained exclusive property of a non-debtor, violates the Fair Debt Collection Practices Act ("FDCPA") and constitutes conversion. Mark Racek incurred a credit card debt which was placed for collection with Asset. (Doc. No. 1, Compl. ¶¶ 8-9; Doc. No. Goltz Aff. ¶ 4.) On April 4, 2009 and October 29, 2009, respectively, Gurstel[1] (on behalf of Asset) served and filed a state court action against Mark Racek for the amounts owed on the credit card account. (Goltz Aff. ¶ 5, Ex. A.) Mary Racek was not a named party in the state court action. ( Id. ; Doc. No. 17, Vavreck Decl. ¶¶ 6, 7, Exs. 5, 6.) On March 9, 2010, the state court entered a judgment against Mark Racek in the amount of $4, 464.32 (the "Judgment"). (Compl. ¶ 10; Goltz Aff. ¶ 7, Ex. C.)

On November 30, 2011, Gurstel sent a garnishment summons, non-earnings disclosure, exemption notices, and a garnishee fee to Wells Fargo Bank on behalf of Asset. (Goltz Aff. ¶ 8, Exs. D, E.) On December 5, 2012, Gurstel served copies of these documents on Mark Racek. ( Id. ¶ 9, Ex. F.) On the same day, counsel for Plaintiffs contacted Gurstel and was put in contact with Christopher Heino, the attorney handling Mark Racek's account. (Vavreck Decl. ¶ 2, Ex. 1 at 5-6.) Plaintiffs' counsel indicated that Mark Racek may have a valid exemption claim and requested a copy of the exemption form. ( Id. ) During the phone call, Plaintiffs' attorney explained that the account contained the wages of Mark Racek's wife (Mary Racek). ( Id. ) Mr. Heino indicated that he would send another copy of the exemption notice. ( Id. at 8, 10.) Mr. Heino made a collection note regarding the December 5, 2012 phone call, noting that Plaintiffs' attorney stated that Mark Racek has a valid exemption claim, but did not otherwise mention that Plaintiffs' attorney had indicated that the garnished account contained wages paid to Mary Racek. ( Id. ¶ 3, Ex. 2 at 1.)

The exemption notice indicated that Mark Racek's funds had been garnished and that some money in the account may be protected (or exempt). (Goltz Aff. ¶ 8, Ex. D.) The notice further stated:

The attached exemption form lists some different sources of money in your account that may be protected. If your money is from one or more of these sources, place a check on the line on the form next to the sources of your money. If it is from one of these sources, the Creditor cannot take it.
BUT, you must follow the instructions and return the exemption form and copies of your bank statements from the last 60 days to have the bank unfreeze your money.
If you do not follow these instructions or your Creditor gets an order from the Court or writ of execution, your financial institution will give the money to your Creditor. If that happens and it is protected, you can still get it back from the Creditor later, but that is not as easy to do as filling in the form now.
...
NOTICE: YOU MUST SEND TO THE CREDITOR'S ATTORNEY (OR TO THE CREDITOR, IF NO ATTORNEY) COPIES OF YOUR BANK STATEMENTS FOR THE ...

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