Stone v. J&M Sec.
| Decision Date | 30 September 2021 |
| Docket Number | 4:20-cv-00352-SPM |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | FELICIA AND JEROME STONE, Plaintiffs, v. J&M SECURITIES, LLC, Defendant. |
This matter is before the court on Plaintiffs' Motion for Partial Summary Judgment on Liability (Doc. 54) and Defendant J&M Securities LLC's Motion for Summary Judgment (Doc. 56). Defendant filed a response to Plaintiffs' Statement of Facts (Doc. 69) and opposition to Plaintiffs' Motion for Partial Summary Judgment (Doc 70), and Plaintiffs filed a Reply to Defendant's opposition (Doc. 72). Plaintiffs filed a Response to Defendant's Statement of Material Facts (Doc. 67) and opposition to Defendant's Motion for Summary Judgment (Doc. 68), and Defendant filed a Reply to Plaintiffs' opposition (Doc. 73). Also before the court is Plaintiffs' Motion to Strike Defendant's Additional Facts in Response to Plaintiffs' Statement of Facts (Doc 71) and Defendant's opposition to the Motion to Strike (Doc. 74).
After carefully considering the undisputed facts of record, the applicable law and the written submissions of the parties for the reasons set out below, I will grant Defendant's Motion For Summary Judgment and deny Plaintiffs' Motion For Summary Judgment and Motion to Strike.
Plaintiffs Felicia and Jerome Stone are judgment-debtors on a 2011 default judgment entered in the Associate Circuit Court of St. Charles County, Missouri. Defendant J&M Securities (“J&M” or “Defendant”) took assignment of the judgment and initiated a post-judgment garnishment proceeding in which J&M filed three garnishment applications in state court in 2018 and 2019. Plaintiffs brought this action in state court alleging that J&M's conduct in connection with the garnishment action violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”) (Count 1); violated the Missouri Merchandising Practices Act, Mo. Rev. Stat. § 407.020 et seq. (“MMPA”) (Count 2); constituted wrongful garnishment under Missouri Law (Count 3); and constituted an abuse of process under Missouri law (Count 4). J&M removed the case to this Court.
Defendant filed a motion to dismiss each of Plaintiffs' claims on the basis that each theory of liability was based on the erroneous assumption that Defendant improperly accounted for monies paid toward the 2011 default judgment. (Doc. 12). The Court granted Defendant's motion in part, dismissing Plaintiffs' Count 2 without prejudice for failure to plausibly allege an ascertainable loss of money or property damage to support damages. (Doc. 39). Subsequently, Plaintiffs filed an amended complaint with a renewed MMPA claim alleging an ascertainable loss of money of approximately $300. (Doc. 44 ¶ 63). Plaintiffs then filed their Motion for Partial Summary Judgment (Doc. 54) and Defendant filed its Motion for Summary Judgment on all counts of Plaintiffs' Petition in response (Doc. 56).
Summary judgment shall be granted “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); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The movant “bears the initial responsibility of informing the district court of the basis for its motion” and must identify “those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id. at 324. “On a motion for summary judgment, ‘facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
“[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.” Wermager v. Cormorant Township Bd., 716 F.2d 1211, 1214 (8th Cir. 1983). Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment. Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (citing Celotex, 477 U.S. at 324). The inquiry under summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
On April 13, 2011, Pontoon Beach Boys, LLC (“PBB”) filed suit against Plaintiffs in the Associate Circuit Court of St. Charles County, Missouri. The Affidavit and Statement of Landlord Case filed by PBB sought judgment for “its payments with costs” for unpaid rent by Plaintiffs in the amount of $1665.00 for the property located at 10 Sugar Maple Lane, Apt #2, Saint Charles, MO 63303. On May 16, 2011, the Circuit Court of St. Charles County entered a default judgment against Plaintiffs for the same property, for $3, 765.00 in unpaid rent, with interest to accrue at 10% the contract rate. Though the default judgment states that PBB shall recover the possession of the apartment, rent in the amount of $3, 765.00, and the costs incurred, the judgment did not specify an amount in costs to be recovered. The Circuit Court's writ of execution, issued on May 27, 2011 to the sheriff of St. Charles County likewise orders the sheriff to remove Plaintiffs from the property, notes that they owe the sum of $3, 765.00, and unspecified costs plus the sheriff's fees related to execution of the writ. On June 1, 2011, PBB assigned the judgment to J&M and the assignment was filed with the Circuit Court on June 13, 2011. J&M did not move the Circuit Court to enter an order to modify the judgment to specify the amount of costs assessed.
The total pre-judgment costs in the Circuit Court, comprised of a filing fee of $41 for the case, and $95.50 in service fees paid to the St. Charles County Sheriff, totaled $136.50. On June 7, 2011, J&M paid $32.75 to the St. Charles County Sheriff for the service of the writ of execution (Doc. 69-1 at 15). On September 18, 2018, J&M paid a total of $46 in connection with 18-GARN-4221. (Doc. 54-8). On February 25, 2019, J&M paid a total of $92 in connection with 19-GARN-715 and 19-GARN-716. (Doc. 54-9). On May 15, 2019, J&M paid $46 in connection with 19-GARN-2020. (Doc. 54-10). On May 30, 2019, J&M paid $65 in connection with 19-GARN-2184. (Doc. 54-11). Totaling the fees paid by J&M for the writ of execution, and the costs paid on the four aforementioned dates in connection with five different garnishment applications, J&M paid a total of $281.75 in post-judgments costs. Combining $136.50 in pre-judgment costs and $281.75 in post-judgment costs, the total amount of costs was $418.25, which was the total amount of costs that J&M collected from Plaintiffs. (Doc. 54-12).
Dated September 24, 2018, garnishment application and order 18-GARN-4221 lists $3, 765.00 as the judgment balance, $2, 924.37 as the post-judgment interest, $169.25 as the “judgment costs”-with the “post” preceding the “judgment costs” striked out with pen-, $36.00 as the service fee for the writ, and $10.00 as the garnishment clerk fee surcharge. (Doc. 54-13). The application shows $0.00 in credits applied and a remaining balance of $6, 904.92. Id.
Dated February 27, 2019, garnishment application and order 19-GARN-715 lists $3, 675.00 as the judgment balance, $2, 931.54 as the post-judgment interest, $215.25 as the post-judgment costs, $36.00 as the service fee for the writ, and $10.00 as the garnishment clerk fee surcharge. (Doc. 54-16). The application shows $0.00 in credits applied and a remaining balance of $6, 957.79. Id.
Dated February 27, 2019, garnishment application and order 19-GARN-716 lists $3, 675.00 as the judgment balance, $3, 099.14 as the post-judgment interest, $261.25 as the post-judgment costs, $36.00 as the service fee for the writ, and $10.00 as the garnishment clerk fee surcharge. (Doc. 54-17). The application shows $0.00 in credits applied and a remaining balance of $7, 003.79. Id.
Dated May 20, 2019, garnishment application and order 19-GARN-2184 lists $3, 675.00 as the judgment balance, $3, 028.50 as the post-judgment interest, $353.25 as the post-judgment costs, $36.00 as the service fee for the writ, and $10.00 as the garnishment clerk fee surcharge. (Doc. 54-20). The application shows a credit amount of $2, 175.12 and a remaining balance of $5, 036.63. Id.
Dated June 3, 2019, garnishment application and order 19-GARN-2020 lists $3, 675.00 as the judgment balance, $3, 014.06 as the post-judgment interest, $307.25 as the post-judgment costs, $36.00 as the service fee for the writ, and $10.00 as the garnishment clerk fee surcharge. (Doc. 54-17). The application shows a credit amount of $1, 440.67 and a remaining balance of $5, 691.64. Id.
Dated December 3, 2019, a Statement of Judgment Balance Remaining Due filed by J&M to the Circuit Court for garnishment 19-GARN-2184, showed no credits received for the reporting period of June 3, 2019 through November 25, 2019, a total of $3, 314.24 in payments received through 19-GARN-716, the total due from the garnishment application and order as $5, 036.63 with a total unsatisfied judgment balance remaining due as $1, 892.07.
On January 7, 2020, Plaintiff Felicia Stone called J&M to find out her...
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