United States District Court, D. Minnesota
Jeffrey A. Carney, Plaintiff,
Unifund CCR, LLC, and Gurstel Chargo, P.A., Defendants.
B. Schwiebert, Esq., DBS Law LLC, Minneapolis, MN, on behalf
Patrick D. Newman, Esq., Moss & Barnett, PA, Minneapolis,
MN, on behalf of Defendants.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
October 26, 2016, the undersigned United States District
Judge heard oral argument on Defendants Unifund CCR, LLC and
Gurstel Chargo, P.A.'s (“Defendants”) Motion
to Dismiss [Docket No. 35]. Plaintiff Jeffrey A. Carney
(“Carney”) opposes the motion. For the reasons
set forth below, Defendants' Motion is granted.
action, arising under the Fair Debt Collections Practices Act
(“FDCPA”), 15 U.S.C. § 1692, has its roots
in state court. In the 2000s, Carney incurred credit card
debt with Citibank, N.A. (“Citibank”). Am. Compl.
[Docket No. 28] ¶ 7. Gurstel Chargo, P.A.
(“Gurstel”), representing Unifund CCR, LLC as
successor in interest to Citibank, sued Carney over the debt
in Minnesota state court. Id. ¶ 8. On November
7, 2014, Gurstel obtained default judgment after Carney
failed to respond to the lawsuit. Id. ¶ 9.
March 30, 2015, Defendants served a garnishment summons on
U.S. Bank, resulting in $11, 714.67 of Carney's funds
being frozen. Id. ¶ 10. Carney filed an
exemption to the garnishment, claiming that his funds were
exempt because they were earnings and because he was the
recipient of need-based assistance. Id. ¶ 11.
Defendants had six days, until April 15, 2015, to object to
Carney's exemption. Id. ¶ 12. On the
seventh day, April 16, 2015, Defendants filed an objection.
Id. ¶ 14.
hearing, the state court ordered the funds released,
concluding the merits of the objection could not be reached
because the objection was untimely. Id. ¶ 18.
The court, however, declined to conclude that Defendants
acted in bad faith, stating that the record lacked evidence
that Defendants purposefully attempted to deceive the court
or Carney and that a calculation error does not rise to the
level of bad faith. Id. ¶ 20. Carney claims
that Defendants' actions resulted in his bank account
being frozen for almost eight weeks. Id. ¶ 21.
the state court's ruling, Defendants have made four
separate attempts to garnish Carney's funds. Id.
¶ 22. Carney claims Defendants attempted these later
garnishment efforts with the knowledge that Carney's
funds were exempt. Id. While Carney maintains that
his funds are exempt, he concedes that no judicial
determination of his exemption has been made. Id.
alleges three FDCPA violations resulting from Defendants'
objection. First, Carney avers that Defendants' objection
falsely represented that Carney was self-employed and,
therefore, his funds were not exempt. Id. ¶ 15.
Second, Carney alleges that Defendants falsely represented to
the state court judge that its objection was timely filed on
April 15, 2015. Id. ¶ 16. Finally, Carney
claims that Defendants falsely represented that its objection
was timely filed because the deadline for filing the
objection was April 16, 2015, not April 15. Id.
¶ 17. Carney also alleges that Defendants' efforts
to collect the debt after the state court action constitute
FDCPA violations. Carney complains that Defendants'
conduct violated §§ 1692e(5), 1692e(10), 1692f, and
1692f(1) of the FDCPA. Id. ¶¶ 27, 28.
Defendants are moving to dismiss the Amended Complaint in its
Motion to Dismiss Standard
Rule 8(a) of the Federal Rules of Civil Procedure, pleadings
“shall contain a short and plain statement of the claim
showing that the pleader is entitled to relief.” A
pleading must contain “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw a reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Determining whether a complaint states a plausible
claim for relief is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“But where the well-pleaded facts do not permit ...