Dickenson v. Townside TV & Appliance, Inc.

• Decision Date: 31 October 1990
• Docket Number: Civ. A. No. 5:88-0947.
• Citation: 770 F. Supp. 1122
• Court: U.S. District Court — Southern District of West Virginia
• Parties: William DICKENSON and Connie Dickenson, individually and on behalf of all others similarly situated, Plaintiffs, v. TOWNSIDE T.V. & APPLIANCE, INC., a corporation, Terry Musick and Lynn Marsh, Defendants.

770 F. Supp. 1122

William DICKENSON and Connie Dickenson, individually and on behalf of all others similarly situated, Plaintiffs, v. TOWNSIDE T.V. & APPLIANCE, INC., a corporation, Terry Musick and Lynn Marsh, Defendants.

Civ. A. No. 5:88-0947.

United States District Court, S.D. West Virginia, Beckley Division.

October 31, 1990.

Daniel F. Hedges, Appalachian Research & Defense Fund, Inc., Charleston, W. Va., for plaintiffs.

James McKowen, Hunt & Wilson, Charleston, W. Va., for defendants.

MEMORANDUM OPINION AND ORDER

HALLANAN, District Judge.

This matter is before the Court via several pending motions. Among such motions are the Defendant's motion for summary judgment as to Count I of the Plaintiffs' amended complaint and the Defendants' motion, with points and authorities, to dismiss all pendent state law claims. Count I of the Plaintiffs' amended complaint alleges that the Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. hereinafter "FDCPA", and is the sole basis for federal jurisdiction. The Defendants' motion for summary judgment as to Count I challenges the applicability of the FDCPA and hence the jurisdiction of this Court.

The Defendants earlier filed a motion to stay the proceedings pending resolution of this jurisdictional issue. By Order entered on January 2, 1990, this Court granted the Defendants' motion to stay "to the extent that this Court would resolve the jurisdictional issues as quickly as possible." The Court then directed the parties, however, to work together to allow compliance with the newly entered scheduling Order. Due to the heavy docket of this Court, it has been unable to rule on these motions in a more timely fashion. However, based on the oral argument of counsel regarding these motions, as well as the pleadings filed relative thereto, the Court is now prepared to render its rulings thereon.

SUMMARY OF FACTS

Defendant Townside T.V. & Appliance hereinafter "Townside" is a West Virginia corporation which has its principal business address at 612 South Eisenhower Drive, Beckley, West Virginia. Townside does business as National TV and Appliance at several locations in West Virginia, including the Fountain Shopping Center in Oak Hill, Fayette County, West Virginia, and bills its customers as National TV and Appliance. Defendant Terry Musick is the President of Townside, while Defendant Lynn Marsh is an agent of Townside.

On or about August 1, 1986, the named Plaintiffs, William and Connie Dickenson, went to Townside's Oak Hill location where they entered into "rental agreements" with Townside for a washer and dryer at a weekly rent of $10.95 and $7.95, respectively. The named Plaintiffs contend that when they arrived at the store they had initially intended to purchase the items outright and were informed that the total purchase price of the items was $598.00. The named Plaintiffs contend, however, that at such time they were informed that they could instead enter into a rent-to-own arrangement which could eventually lead to their ownership of the items. While the Plaintiffs admit that they had expected to pay reasonable interest charges in addition to the total purchase price of the items as part of the rent-to-own arrangement, they allege that they were not informed how many payments they would need to make, the percentage of interest that would be charged, or what their total expenditure would be to achieve ownership in such manner.

The Plaintiffs then contend that although they had paid over $900.00 between August, 1986, and July, 1987, they were informed by an agent of Townside in July, 1987, that they still owed a significant amount before they would own such items. On or about August 23, 1987, an agent of Townside repossessed the appliances after the named Plaintiffs failed or refused to make any additional payments.

The named Plaintiffs initiated this action on July 12, 1988. By Order entered on January 2, 1990, the Court agreed to certify the action as a class action with two subclasses. In general terms, the class action is based on the alleged uniform solicitation practices of the Defendants. More specifically, as to the jurisdiction of this Court, the Plaintiffs allege in their second amended complaint that the Defendants violated the FDCPA. They also allege a plethora of pendent state law claims.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO COUNT I

The standard for granting summary judgment was discussed by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1985). In Celotex, the Supreme Court held in part that:

... the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no "genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof....

Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53.

Of course, all justifiable inferences must be drawn in favor of the nonmoving party, "credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

Plaintiffs allege in Count I that the Defendants have violated the FDCPA in the following particulars:

(a) By the use of an organization or business name other than the true name of the debt collector's business, company, or organization in violation of 15 U.S.C. § 1692e(14).

(b) By collection of fees and charges not authorized by agreement or permitted by law in violation of 15 U.S.C. § 1692f(1).

(c) By taking possession of property when there is no present right to possession in violation of 15 U.S.C. § 1692f(6).

Second Amended Complaint at 5.

Defendants contend that their motion for summary judgment as to Count I should be granted because the Defendants are not "debt collectors" for purposes of the FDCPA and thus that the FDCPA does not apply.¹ See Kempf v. Famous Barr Co., 676 F.Supp. 937, 938 (E.D.Mo.1988). The Court agrees. 15 U.S.C. § 1692a (1986) provides in pertinent part:

(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include —

(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditors;

* * * * * *

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

(emphasis added). 15 U.S.C. § 1692k provides for civil liability and states in subpart (d) in regards to jurisdiction that "an action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs."

In regards to the issue of whether Townside is a "debt collector" under the FDCPA, the Defendants contend that Townside consistently both conducts business and bills customers under the name "National TV & Appliance," that the use of such business name is proper, and that such business name is its own name. In essence, it is the contention of the Defendants that Townside is not a creditor which, in the process of collecting its own debts, uses any name other than its own which would indicate that a third person is collecting or attempting to collect such debts. In support of such contention, the Defendants have submitted the affidavit of Defendant Musick which provides in part that:

7. The corporate defendant advertises in local newspapers, and on local TV and Radio, as "National T.V. and Appliance" (sometimes shortened in printed ads to "National TV Appliance").

8. The corporate defendant is in the business of renting and selling

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