Dunn v. Adams, Stepner, Woltermann & Dusing, PLLC

PATRICK DUNN PLAINTIFF v. ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC DEFENDANT

CIVIL No. 19-4-DLB-CJS

United States District Court, E.D. Kentucky, Northern Division, Covington

August 4, 2021

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Patrick Dunn became embroiled in a dispute with Zimmer Motors over the repair of his 2014 Jeep Grand Cherokee. Upset by the length of time it took Zimmer Motors to repair the vehicle Plaintiff refused to pay the amount Zimmer Motors billed him. Zimmer Motors retained the law firm of Adams, Stepner Woltermann & Dusing, PLLC (“ASW&D”) to collect the debt from Plaintiff. After sending a demand letter, ASW&D sued to recover the debt in state court, providing in support of its case a “written confirmation” from Dunn promising to pay the amount owed. Plaintiff claims the written confirmation has his forged signature on it. Plaintiff eventually settled the action in state court and thereafter sued ASW&D in federal court under the Fair Debt Collection Practices Act (“FDCPA”). Plaintiff argues that ASW&D's use of the purportedly forged written confirmation violates the FDCPA's prohibition on the use of a “false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The parties have filed cross-Motions for Summary Judgment. (Docs. # 55 and 56). As explained below, Plaintiff cannot recover under the FDCPA because no reasonable jury could find that ASW&D meets the statutory definition of a “debt collector.” Accordingly, ASW&D's Motion is granted and Plaintiff's Motion is denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

On September 28, 2016, Plaintiff Patrick Dunn's son got into an automobile accident while driving his parents' 2014 Jeep Grand Cherokee. (Doc. # 56-1 ¶¶ 4, 8). The following day, Dunn and his wife took the Jeep to Zimmer Motors, Inc. for repair. (Id. ¶ 9). Before dropping off the vehicle, Zimmer Motors claims that Dunn signed a blank payment authorization form that was then submitted to Dunn's insurance company, Liberty Mutual. (Docs. # 54-7 at 31-34 and 56-6). The document, which appears in the record, shows Dunn's signature with the name of Liberty Mutual's claims adjuster, Tim Black, listed below. Dunn, for his part, denies signing any documents related to services at Zimmer Motors and furthermore alleges that his signature was forged. (Doc. # 56-1 at ¶¶ 20, 26). On October 7, 2016, Liberty Mutual sent Dunn a check for $14, 648.99, which was made out to Sanitech LLC-Dunn's business and the insured under the policy. (Docs. # 53-2 and 55-3 at 2).

Despite Zimmer Motors' assurances that the repairs would be done quickly, (Doc. # 56-1 ¶ 10), months went by, and Dunn called Zimmer Motors repeatedly to express his frustration at the pace of the repairs. (Docs. # 54-7 at 25-26 and 56-1 ¶ 7). Finally, on January 26, 2017, around four months after Zimmer Motors had taken possession of Dunn's car, employee Rich Zimmer called Dunn to inform him that he could pick up his car the next day. (Doc. # 56-1 ¶ 13). The parties dispute what happened next. Dunn says that when he showed up on Friday, January 27th, he was told that Rich Zimmer was in a meeting and could not release the car to Dunn that day. (Id. ¶ 14). Dunn further alleges that he returned on Monday, January 30th, and this time was told by Zimmer Motors employee Amanda Dorger that he would have to sign a “written confirmation” acknowledging that he owed $14, 648.99 for the cost of the repairs. (Docs. # 56-1 ¶ 15, 54-7 at 14-15, and 56-3). According to Dunn, he refused to sign any documents on January 30, 2017 and demanded that Dorger release the Jeep, which she did. (Doc. # 56-1 ¶ 16).

In contrast, Defendant asserts that Dunn came in only once-on January 27, 2017-and signed the written confirmation before taking the Jeep. The “written confirmation” appears in the record and is identical to the payment authorization form Dunn purportedly signed when he dropped off the vehicle, except that the name of the car and the amount owed are filled in and Dunn's insurance information is missing. (Doc. # 56-3). Notably, Dunn's signature is dated January 27, 2017, three days before Dunn claims to have retrieved the Jeep. (Id.). The written confirmation is also signed by Rich Zimmer. (Id.). Although Rich Zimmer asserts that he released the vehicle only after Dunn signed the written confirmation, Zimmer admits that Dorger would have been the one to have witnessed Dunn's signature, because Zimmer was dealing with another customer at the time. (Doc. # 54-3 at 23-24, 28). Dorger herself does not recall whether Dunn signed the form, although she does not recall his refusing to sign the form either. (Doc. # 54-7 at 23). As with the earlier form purportedly signed when he dropped off the Jeep, Dunn denies ever having signed the second “written confirmation” and alleges that his signature was forged. (Doc. # 56-1 ¶¶ 16, 20).

In the ensuing months, Dunn attempted to contact Zimmer to settle the dispute but was unsuccessful. (Id. ¶ 17). On March 23, 2017, Zimmer Motors, through its counsel, ASW&D, sent Dunn a written demand for payment of $14, 648.99 related to the repairs done on the Jeep. (Id. ¶ 18). The demand letter was accompanied by the “written confirmation” purportedly signed by Dunn the day he retrieved the Jeep from Zimmer Motors. (Doc. # 56-2). After receiving Zimmer Motors' letter, Dunn informed ASW&D attorney, Scott Guenther, that his signature on the written confirmation was forged. (Docs. # 55-3 at 10 and 56-1 ¶ 20). Shortly thereafter, Dunn's attorney, Christian Dennery, contacted Guenther to negotiate a settlement. (Doc. # 55-3 at 12-13). Both sides negotiated throughout April 2017 but were unable to reach an agreement. (Id. at 12-21). On January 10, 2018, Dunn's counsel made a final offer and again informed ASW&D of the alleged forgery. (Doc. # 56-4 at 1). Six days later, on January 16th, ASW&D filed a collection action on behalf of Zimmer Motors against Dunn in Boone Circuit Court, alleging an unpaid debt of $14, 648.99. (Doc. # 56-5 at 2). ASW&D cited the written confirmation purportedly signed by Dunn on January 27, 2017 as evidence of a contract between Dunn and Zimmer Motors, and attached a copy of the written confirmation to its state-court pleadings. (Id.).

The state-court proceedings did not go well for Dunn. Despite having been provided with the purportedly forged document on March 23, 2017, Dunn waited until November 2018 to produce an expert report showing that the signature was forged. (Doc. # 56-7). By then, it was too late; the state court denied Dunn's motion to amend pleadings to include a counterclaim against Zimmer Motors for the unlawful attempt to collect a debt using a forged document. (Docs. # 55-2 ¶ 22 and 56-1 ¶ 28). At that point, Dunn settled the case for the full amount Zimmer Motors had requested in its complaint. (Docs. # 16-5 and 56-1 ¶ 32). On top of that, Dunn incurred attorney's fees, expert fees, and costs exceeding $9, 000. (Doc. # 56-1 ¶ 33).

Following the unsuccessful state-court litigation, Dunn filed the instant lawsuit against Zimmer Motors and ASW&D on January 15, 2019, alleging that the Defendants' use of a forged document in the state-court action violated the FDCPA and the Kentucky Consumer Protection Act. (Doc. # 1). After Dunn amended his Complaint, (Doc. # 6), both Defendants filed motions to dismiss. (Docs. # 15 and 16). Those motions were denied in a November 19, 2019 Memorandum Opinion and Order. (Doc. # 20). Dunn has since voluntarily dismissed his claims against Zimmer Motors. (Doc. # 44). In October 2020, Dunn and ASW&D cross-moved for summary judgment on Dunn's FDCPA claim. In its Motion, ASW&D argues that summary judgment is appropriate because the Court lacks Article III standing and because Plaintiff's claim is time-barred. (Doc. # 55-1 at 10, 15-18). In addition, ASW&D maintains that it is not liable because it is not a “debt collector” within the meaning of the FDCPA and the debt at issue is not a qualifying “consumer debt” under the FDCPA. (Id. at 1-15). Neither party makes mention of the state-law claim. Each party has filed response and reply briefs. (Docs. # 59, 60, 62, and 63). Accordingly, the Motions for Summary Judgment are ripe for the Court's review.

III. ANALYSIS

A. Standard of Review

Summary judgment is appropriate when the record reveals “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). A genuine issue of material fact exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The “moving party bears the burden of showing the absence of any genuine issues of material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). Once a party files a properly-supported motion for summary judgment, by either affirmatively negating an essential element of the non-moving party's claim or establishing an affirmative defense, “the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (internal quotation marks omitted). However, “[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient.” Id. at 252.

The Court must “accept [the non-moving party's] evidence as true and draw all reasonable inferences in his favor.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Anderson, 477 U.S at 255). The Court may not “make credibility determinations” or “weigh the evidence when determining whether an issue of fact remains for...