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Salaimeh v. Messerli & Kramer, P.A.

United States District Court, D. Minnesota

November 25, 2014

Ameera Salaimeh, Plaintiff,
v.
Messerli & Kramer, P.A., a domestic professional association and RAB Performance Recoveries, LLC, a foreign limited liability company, Defendants.

Marcus J. Hinnenthal, Esq., Patrick L. Hayes, Esq. and Marso & Michelson, PA.

Derrick N. Weber, Esq., Bradley R. Armstrong, Esq. and Messerli & Kramer PA.

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the motions for summary judgment and to compel discovery by defendants Messerli & Kramer (M&K) and RAB Performance Recoveries, LLC (RAB). Based on a review of the file, record, and proceedings herein, and for the following reasons, the court grants the motion for summary judgment and denies as moot the motion to compel discovery.

BACKGROUND

This debt-collection dispute arises out of actions taken by M&K and non-party TCF Bank National, Inc. (TCF Bank), regarding a consumer debt incurred by plaintiff Ameera Salaimeh. Salaimeh held a credit account with FIA Card Services, LLC (FIA). Salaimeh Dep. at 29:19-25. At some point before January 20, 2011, she failed to make payments on the account. Id. at 30:21-31:3; Armstrong Decl. Ex. 1. First Resolution Investment Corp. (First Resolution) acquired the delinquent debt from FIA and retained M&K to collect on the debt. Armstrong Decl. ¶ 4. M&K, acting on behalf of First Resolution, filed an action against Salaimeh in Anoka County District Court on August 30, 2010. Id . ¶ 6. Salaimeh failed to answer the complaint. Id . On January 20, 2011, a money judgment in the amount of $12, 611.20 was entered in favor of First Resolution. Id . Ex. 1.

Salaimeh maintained a checking account with TCF Bank. Id . Ex. 10, at 5. To enforce the judgment, M&K served a garnishment summons and two copies of an exemption notice and disclosure form on TCF Bank on August 13, 2013. Id . Ex. 2. Around August 20, 2013, TCF Bank withdrew $890.03 from Salaimeh's account and levied a $125.00 garnishment fee. Id . Ex. 10, at 5. Salaimeh discovered that her account had been garnished when her debit card was declined while shopping. Salaimeh Dep. at 41:21-25. Her husband contacted TCF Bank and was told that the funds were being garnished by M&K. Salaimeh Dep. 41:24-43:1; Salaimeh Aff. ¶ 6.

On August 22, 2013, Salaimeh sent M&K a generic exemption form, which she obtained online, claiming that all of her garnished funds were exempt.[1] Salaimeh Aff. ¶ 5 & Ex. As a consequence of her funds being garnished, Salaimeh alleges that she incurred overdraft fees, fell behind in monthly payments, and had checks refused by various retailers and grocery stores. Compl. ¶¶ 26-31. First Resolution did not object to Salaimeh's claimed exemptions. Armstrong Aff. ¶ 12.

At some point before September 13, 2013, TCF Bank mistakenly sent Salaimeh a second exemption form, relating to a debt that she did not owe. Salaimeh Dep. at 46:3-4; Salaimeh Aff. Ex. 2. The caption on the form listed defendant RAB as the creditor, Ann M. Schultenover as the debtor, and TCF Bank as the garnishee. Salaimeh Aff. Ex. 2. RAB is also a client of M&K. Armstrong Aff. ¶ 5. Although the case caption indicated that it did not pertain to her, Salaimeh completed the form and sent it to M&K on September 19, 2013. Salaimeh Aff. Ex. 2, at 3. She listed her address on the form. Id.

When M&K received the second exemption form, it mistakenly updated the address for Schultenover to reflect the address that Salaimeh provided. Armstrong Aff. ¶ 14. M&K, on behalf of its client RAB, then objected to the claimed exemption as it related to Schultenover's debt. Id . M&K sent Salaimeh a Creditor's Notice of Objection and Notice of Hearing on Exemption Claim (Notice). Armstrong Aff. Ex. 6. The Notice contained a caption for Schultenover's case and listed Schultenover as the debtor. Salaimeh Dep. at 48:21-49:5; Salaimeh Aff. Ex. 3. Although these documents were mistakenly mailed to Salaimeh, Salaimeh's account was not further garnished because of Schultenover's debt.

Salaimeh filed a complaint on November 21, 2013, alleging (1) violations of the Fair Debt Collection Practices Act (FDCPA), (2) wrongful garnishment, (3) conversion, (4) abuse of process, and (5) negligence.[2] M&K instructed TCF Bank to release Salaimeh's garnished funds back to her after she commenced this action. Armstrong Aff. ¶ 18. Defendants now move for summary judgment.

DISCUSSION

I. Standard of Review

"The court shall grant summary judgment if 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); 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 ...


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