Frye v. Bowman, Heintz, Boscia and Vician, P.C., IP 99-1455-C-T.

• Decision Date: 28 January 2002
• Docket Number: No. IP 99-1455-C-T.,IP 99-1455-C-T.
• Citation: 193 F.Supp.2d 1070
• Parties: Kevin FRYE and Mila Frye, on behalf of themselves and all others similarly situated, Plaintiffs, v. BOWMAN, HEINTZ, BOSCIA AND VICIAN, P.C., Defendant.
• Court: U.S. District Court — Southern District of Indiana

193 F.Supp.2d 1070

Kevin FRYE and Mila Frye, on behalf of themselves and all others similarly situated, Plaintiffs, v. BOWMAN, HEINTZ, BOSCIA AND VICIAN, P.C., Defendant.

No. IP 99-1455-C-T.

United States District Court, S.D. Indiana, Indianapolis Division.

January 28, 2002.

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Clifford W. Shepard, Consumer Protection Law Office, Indianapolis, IN, for Plaintiffs.

G. Ronald Heath, Johnson Smith Heath LLP, Indianapolis, IN, Glenn S. Vician, Bowman, Heintz, Boscia & Vician, Merrillville, IN, for Defendant.

ENTRY ADDRESSING LEGAL ISSUES ON SUMMARY JUDGMENT

TINDER, District Judge.

This Entry addresses the legal issues raised in the parties' cross-motions for summary judgment which motions were consolidated on September 19, 2001. The issues revolve around whether the Defendant's Summonses issued to Plaintiffs under state court procedural rules violate the Fair Debt Collections Practices Act (the "FDCPA" or "Act"), 15 U.S.C. §§ 1691-1692o.

I. A Summons

The Fryes' claims under the FDCPA challenge Bowman's Summonses issued to them in state court litigation. The purpose of a summons is to notify a party that an action has been brought against it and to bring that party under the court's jurisdiction. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) ("An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process."); see also Miss. Pub. Corp. v. Murphree, 326 U.S. 438, 444-445, 66 S.Ct. 242, 90 L.Ed. 185 (1946) (stating that "service of summons is the procedure by which a court ... asserts jurisdiction over the person of the party served"). "Service of process ... is fundamental to any procedural imposition on a named defendant.... In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant." Murphy Bros., 526 U.S. at 350, 119 S.Ct. 1322. Thus, "one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend." Id. A summons serves the same purposes under Indiana's procedural rules. Ind. T.R. 4(A) ("The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law."); State ex rel. Travelers Ins. Co. v. Madison Superior Court, 265 Ind. 287, 354 N.E.2d 188, 191 (1976) ("One becomes a party to an action when he ... is served with summons ... or ... is subjected to the power of the court under any other law.").

II. Summary Judgment Standard

Summary judgment should be granted only where "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). No genuine issue exists if the record viewed as a whole could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "With cross-motions, [the] review of the record requires that [the court] construe all inferences in favor of the party against whom the motion under consideration is made." O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir.2001). With regard to an affirmative defense on which the defendant bears the burden, the defendant must present evidence to "support each element of its defense[ ] and demonstrate the lack of any genuine issue of material fact with regard thereto." Rushing v. Kan. City So. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999).

III. Background¹

On September 16, 1999, Plaintiffs Kevin Frye and Mila Frye commenced this action on behalf of themselves and all others similarly situated, alleging that Defendant Bowman, Heintz, Boscia and Vician, P.C. ("Bowman") violated the FDCPA. The Fryes are consumers who resided in Madison County, Anderson, Indiana, during the alleged violations of the FDCPA contained in the Complaint. Their debt with General Electric Capital Corporation ("GE") was primarily for personal, family or household purposes. Bowman is a law firm in the State of Indiana which is, inter alia, engaged in the business of collecting consumer debt in the state.²

On or before September 17, 1998, GE hired Bowman to collect the debt owed GE by the Fryes. On September 17, while acting within the scope of its employment for GE, Bowman sued the Fryes in the Madison County Superior Court, Madison County, Indiana, and caused Summonses to be sent to them. Copies of the Summonses to the Fryes are attached to Plaintiffs' Designation Of Evidence as Exhibits G and H. Bowman designed and compiled the Summonses and then furnished them to the Clerk of the Madison County Superior Court. Bowman's purpose in filing the Complaint served with the Summonses was to collect from the Fryes the debt owed GE.

The Complaint and Summonses state, inter alia, that "[T]his is an attempt to collect a debt. . . ." The Summonses further state in relevant part:

THE STATE OF INDIANA TO THE DEFENDANT:

You have been sued by the person(s) identified as "Plaintiff" in the Court stated above.

The nature of the suit against you is stated in the COMPLAINT which is attached to this SUMMONS. It also states the demand which the Plaintiff has made against you.

You must either personally or by your attorney file your written answer to the COMPLAINT within twenty (20) days commencing the day after this SUMMONS and the COMPLAINT were personally served upon you or your agent or left for you by the Sheriff or other process server.

In the event the SUMMONS and COMPLAINT were left for you and you then receive by first class mail (not certified) a copy of the SUMMONS alone, this mailing is merely a confirmation that the SUMMONS and COMPLAINT were previously left for you. You should not consider the date on which you receive the mailed SUMMONS as the commencement date for the time period allowed for your answer. Rather, the time period allowed for your written answer commences on the date when the SUMMONS and COMPLAINT were first personally served upon you or your agent or left for you by the Sheriff or other process server.

However, if you or your agent first received the SUMMONS and the COMPLAINT by certified mail, you have twenty-three (23) days from the date of receipt to file your written answer with the Clerk.

If you fail to answer the COMPLAINT of the Plaintiff within the times prescribed herein, judgment will be entered against you for what the Plaintiff has demanded.

If you have a claim against the Plaintiff arising from the same transaction or occurrence, you may be required to assert such claim in writing together with your written answer.

In Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995), Bowman's predecessor law firm filed an affidavit describing certain systems and procedures in place in the firm which were adopted to avoid errors under the FDCPA. Those systems and procedures are in full force and effect at the Bowman firm. The procedures include: (1) publication of an "in-house" Fair Debt compliance manual, updated on a regular basis and supplied to every attorney, paralegal, collector and employee of the firm who deals with the direct collection of consumer loan accounts; and (2) provision of in-house training seminars to specifically inform paralegals, collectors, and other staff persons working on the collection of consumer debt accounts as to information to ensure compliance with the FDCPA and advise of any changes under the FDCPA as they occur. More specifically as to the alleged FDCPA violation in the instant case, Bowman has a pre-suit review procedure to provide checks and balances to review the types of summons forms used by the firm in consumer collection cases, including the case filed against the Fryes in state court. That process is used to ensure accuracy and to repeatedly review the work of staff persons, paralegals and attorneys to avoid errors and omissions that could result in a violation of the FDCPA. The process includes these steps: (1) an attorney, paralegal or staff person can select a summons form from the firm computer system along with the complaint form or notice of claim form and other documents relating to the filing of a lawsuit; (2) the summons form and other associated documents are then submitted to the attorney review room where an attorney reviews the complete collection file, including the specific summons form to be filed against a consumer debtor, to ensure the form is the form issued by the county in which the lawsuit is filed or contains language that is consistent with that used in summons forms from the Lake County Superior Court. Bowman has a practice of reviewing court-approved forms and incorporating the language used in such forms into the forms the firm uses in lawsuits involving consumer debtors. These practices and procedures were used in the state court suit against the Fryes.

IV. Discussion

The FDCPA was enacted "to eliminate abusive debt collection practices by debt collectors ... and ... to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). To that end, the FDCPA prohibits a debt collector from "engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. The Act also states that a debt collector "may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt," 15 U.S.C. § 1692e, and "may...