Amour v. Collection Prof'ls, Inc.

• Decision Date: 02 June 2015
• Docket Number: No. DA 14–0523.,DA 14–0523.
• Citation: 379 Mont. 344,2015 MT 150,350 P.3d 71
• Parties: Shannon AMOUR, Plaintiff and Appellant, v. COLLECTION PROFESSIONALS, INCORPORATED, and Nancy Smith dba Choices for Change Counseling, Defendants and Appellees.
• Court: Montana Supreme Court

379 Mont. 344

350 P.3d 71

2015 MT 150

Shannon AMOUR, Plaintiff and Appellant

v.COLLECTION PROFESSIONALS, INCORPORATED, and Nancy Smith dba Choices for Change Counseling, Defendants and Appellees.

No. DA 14–0523.

Supreme Court of Montana.

Submitted on Briefs April 8, 2015.

Decided June 2, 2015.

For Appellant: Terry A. Wallace, Attorney at Law, Missoula, Montana.

For Appellees: Matthew L. Erekson, Collection Professionals, Inc., Missoula, Montana. Elizabeth W. Lund, Moore, O'Connell & Refling, P.C., Bozeman, Montana (for Nancy Smith, dba Choices for Change Counseling).

Opinion

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 Shannon Amour sued Collection Professionals, Inc. (CPI) and Nancy Smith after CPI sought to collect Amour's bill for Smith's services as guardian ad litem (GAL) during Amour's marriage dissolution proceedings. The Fourth Judicial District Court, Mineral County, entered summary judgment in favor of CPI and Smith. Amour appeals. The dispositive issues on appeal are:

1. Whether the District Court correctly awarded summary judgment to CPI on Amour's Fair Debt Collection Practices Act claim because CPI was not attempting to collect a debt regulated by that statute.

2. Whether the District Court correctly awarded summary judgment to Smith.

3. Whether the District Court correctly awarded CPI $7,408.70 in damages plus interest.

¶ 2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 In 2007, Amour filed for dissolution of her marriage. On January 24, 2008, the court handling the action entered an order naming Smith as GAL for Amour's children during the pendency of the dissolution proceedings. The order specified Smith's duties, granted Smith judicial immunity, and specified that the gross marital estate was responsible for paying Smith for her work.

¶ 4 On February 4, 2008, Amour entered a contract with Smith specifying that Smith would be paid $90 per hour for her work, plus expenses. Smith billed Amour half the account and billed Amour's ex- husband the other half. Amour paid some of the bills but stopped paying in May 2010. In November 2011, Smith assigned $6,975.60 in unpaid bills to CPI, which then notified Amour that she owed $7,511.74, including interest. On January 20, 2012, the dissolution court entered an order stating that the “individual debts to the GAL are solely the responsibility of the individuals and are not a debt of the marital estate,” and that the “Parties' individual debts including ... their individual debt to the GAL are the responsibility of each party individually.”

¶ 5 In March 2012, CPI filed a complaint injustice court to collect the debt. Amour filed a counterclaim exceeding the justice court's jurisdictional limit and the case was dismissed. Amour then filed a complaint in the District Court alleging that CPI violated the Fair Debt Collection Practices Act (FDCPA) through attempting to collect a false debt; that Smith committed defamation by falsely publishing to third parties that Amour owed a debt; and that Smith violated the Montana Consumer Protection Act through her actions. CPI counterclaimed for the amount owed for Smith's services under theories of breach of contract and breach of a court order. Later that year, CPI and Smith filed motions for summary judgment.

¶ 6 In November 2013, the District Court awarded Smith summary judgment in full and CPI summary judgment in part, reserving the issue of the amount of damages due to CPI for Amour's failure to pay her account. In July 2014, the District Court entered judgment in favor of CPI in the amount of $7,408.70 in principal plus interest from the date of Smith's assignment of the account to CPI. Amour appeals the District Court's entries of summary judgment in favor of CPI and Smith.

STANDARD OF REVIEW

¶ 7 We review summary judgment orders de novo. Albert v. City of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Summary judgment is appropriate when the moving party demonstrates an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. M.R. Civ. P. 56(c)(3) ; Albert, ¶ 15. After the moving party meets its initial burden to show the absence of a genuine issue of fact and entitlement to judgment, the burden shifts to the party opposing summary judgment either to show a triable issue or to show why the undisputed facts do not entitle the moving party to judgment. Phelps v. Frampton, 2007 MT 263, ¶ 16, 339 Mont. 330, 170 P.3d 474.

DISCUSSION

¶ 8 1. Whether the District Court correctly awarded summary judgment to CPI on Amour's FDCPA claim because CPI was not attempting to collect a debt regulated by that statute.

¶ 9 The FDCPA regulates the collection of debts, but only the collection of those debts that fall under the terms of the statute. Hawthorne v. Mac Adjustment, 140 F.3d 1367, 1371 (11th Cir.1998) (“By the plain terms of the statute, not all obligations to pay are considered ‘debts' subject to the FDCPA.”). The FDCPA defines “debt” as “[A]ny obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services, which are the subject of the transaction, are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). A “transaction” under the FDCPA must be a consensual arrangement. Hawthorne, 140 F.3d at 1371. Thus, “[w]hen determining whether an obligation is a ‘debt’ under the statute, courts focus on whether it arose from a consensual consumer transaction for goods or services.” Omran v. Beach Forest Subdivision Ass'n, Inc., No. 12–10116, 2012 WL 1676688, *3, 2012 U.S. Dist. LEXIS 66277, at *7 (E.D.Mich.) (concluding that fines for breaking subdivision deed restrictions are not debts under the FDCPA); see Gulley v. Markoff & Krasny, 664 F.3d 1073, 1075 (7th Cir.2011) (per curiam) (concluding that the FDCPA does not apply to efforts to collect city real estate fines); Hicken v. Arnold, Anderson & Dove, P.L.L.P., 137 F.Supp.2d 1141, 1143 (D.Minn.2001) (concluding that a debt arising out of a marital settlement agreement does not fall within the FDCPA).

¶ 10 CPI asserts, and the District Court concluded, that Amour's debt to Smith did not arise out of a consensual transaction. Amour contests this conclusion, arguing that her debt to Smith arose out of the contract that Amour and Smith entered into in February 2008 specifying the amount that Amour would pay Smith for her services. Amour fails to recognize, however, that the February 2008 contract followed the dissolution court's January 2008 order appointing Smith as GAL and directing that the marital estate would be responsible for paying Smith for her services. In its January 2012 order, the court then assigned half that debt to Amour personally. With or without the contract between Amour and Smith, Amour still would have been under court order for Smith's services. Indeed, in response to a request for admission, Amour stated that her contract with Smith was “a document I was ordered to sign” by the dissolution court. Amour also stated in her complaint that the dissolution court ordered Smith appointed as GAL, and that Amour “did not want the services of Smith and did not request them.” Under these circumstances, it is clear that Amour's debt to Smith did not arise out of a consensual transaction and therefore that the FDCPA does not apply.

¶ 11 Amour also argues that CPI effectively admitted that the FDCPA regulates its debt collection efforts by sending Amour a letter referring to Amour's account as a “debt.” But the question is not whether Amour was indebted to Smith; the question is whether the debt is the type of debt that the FDCPA regulates. It is not, because the debt did not arise out of a consensual transaction.

¶ 12 The District Court correctly awarded CPI summary judgment on Amour's FDCPA claim.

¶ 13 2. Whether the District Court correctly awarded summary judgment to Smith.

¶ 14 The District Court granted summary judgment to Smith on Amour's state law claims on two grounds. First, the court determined that Amour failed to raise a genuine issue of material fact about those claims, and that, in the absence of such a dispute, Smith was entitled to judgment. Second, the court determined that Smith was due quasi-judicial immunity for her actions as GAL. Amour contests both of these determinations.

¶ 15 Amour alleged two claims against Smith: defamation and violation of the Montana Consumer Protection Act. The District Court held that, as a court-appointed GAL, Smith was entitled to absolute quasi-judicial immunity under § 2–9–112(2), MCA. That section provides in pertinent part that an “agent of the judiciary is immune from suit for damages arising from the lawful discharge of an official duty associated with judicial actions of the court.” We have extended immunity to participants in the judicial process when they are acting in a quasi-judicial capacity. Steele v. McGregor, 1998 MT 85, ¶¶ 25–30, 288 Mont. 238, 956 P.2d 1364.

Like judicial immunity, quasi-judicial immunity benefits the public—not the person being sued—by ensuring that quasi-judicial officers exercise their functions unfettered by fear of legal consequences; also like judicial immunity, quasi-judicial immunity extends only to acts within the scope of the actor's jurisdiction and with the authorization of law.

Steele, ¶ 26. Though we have not addressed the application of quasi-judicial immunity to a GAL, other courts have determined that GALs are entitled to absolute quasi-judicial immunity. See Surprenant v. Mulcrone,

163 N.H. 529, 44 A.3d 465, 468 (2012) (“Absolute judicial immunity attaches when a GAL performs certain delegated duties because of the intimate relationship between the GAL and the court in the judicial process.”) (quoting Marr v. Me. Dept. of Human Servs., 215 F.Supp.2d 261, 268 (D.Me.2002) ). Courts recognize that judicial immunity protects against harassment by disgruntled parents and ensures...