Hemmingsen v. Messerli & Kramer, P.A.

• Decision Date: 16 March 2012
• Docket Number: No. 11–2029.,11–2029.
• Citation: 674 F.3d 814
• Parties: Heather HEMMINGSEN, Plaintiff–Appellant, v. MESSERLI & KRAMER, P.A., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

674 F.3d 814

Heather HEMMINGSEN, Plaintiff–Appellant,
v.
MESSERLI & KRAMER, P.A., Defendant–Appellee.

No. 11–2029.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 15, 2011.Filed: March 16, 2012.

[674 F.3d 815]

Thomas J. Lyons, Sr., argued, Trista M. Roy, on the brief, Vadnais Heights, MN, for appellant.

George R. Serdar, argued, Derrick N. Weber, Jennifer Zwilling, on the brief, Minneapolis, MN, for appellee.

Before LOKEN, BRIGHT, and SHEPHERD, Circuit Judges.

LOKEN, Circuit Judge.

George Hemmingsen opened a Discover Bank credit card account in September 2002 and married Heather Hemmingsen one month later (for clarity, we will refer to the couple as George and Ms. Hemmingsen). Discover wrote off the account in April 2007 and retained Messerli & Kramer (M & K), a Minnesota law firm, to recover the unpaid balance. M & K commenced a collection action against George and Ms. Hemmingsen in state court. The state court granted summary judgment to Ms. Hemmingsen when Discover failed to overcome her testimony that she never asked to be on the account, never agreed to pay on the account, and never used or benefitted from it.

Ms. Hemmingsen then commenced this action in federal court alleging that M & K violated multiple provisions of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692d–f, by making false statements and misrepresentations in a memorandum filed in the state court action in support of Discover's motion for summary judgment. The Complaint also asserted state law claims for malicious prosecution, abuse of process, and the recovery of treble damages for attorney deceit under

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Minn.Stat. § 481.071. Ms. Hemmingsen appeals the district court's ¹ grant of summary judgment dismissing these claims. We review the grant of summary judgment de novo and may affirm on any basis supported by the record. Green Tree Servicing, LLC v. DBSI Landmark Towers, LLC, 652 F.3d 910, 913 (8th Cir.2011). We affirm but on a different ground as to one of the FDCPA claims.

I. Background

George added Ms. Hemmingsen to the account by calling Discover in November 2002. Thereafter, the monthly statements identified it as a joint account. Minimal payments were made in mid–2003 as the unpaid balance grew. George and Ms. Hemmingsen divorced in 2005. Their Marital Termination Agreement, completed and signed by Ms. Hemmingsen under oath and incorporated in the dissolution judgment, listed the Discover account and recited that both parties owed Discover $3,286.17 for debt incurred for “Living Expenses,” and that George was responsible for the debt and would hold Ms. Hemmingsen harmless for the liability.

M & K commenced a state court action to recover the unpaid balance of $4,322.92 by serving George in September 2007. The complaint asserted alternative claims for breach of contract and for an action on an account stated. After obtaining a default judgment against George, M & K served Ms. Hemmingsen with the complaint in February 2008. She retained counsel who filed an answer denying the claims and asserting that George “is solely responsible for any debt owed.” The parties conducted document discovery but took no depositions. In response to M & K interrogatories and admission requests, Ms. Hemmingsen denied applying for or opening the account, making charges or payments on the account, or receiving the benefits of account purchases. Defense counsel requested that Discover “produce any documents bearing my client's signature.” M & K produced none.

Both sides moved for summary judgment. M & K's Memorandum in Support alleged, in the portions here at issue, that Ms. Hemmingsen assented to the terms of the account agreement by accepting and using the card for purchases or cash advances, received account statements and made partial payments, and acknowledged the account was jointly held with an unpaid balance (the last being an accurate description of the Marital Termination Agreement). These allegations were supported by an affidavit prepared by M & K, signed by Discover's custodian of records, and averring that George and Ms. Hemmingsen “applied for and were issued a consumer credit card,” “used or authorized others to use the Account to purchase goods and services,” received monthly statements but failed to make the required minimum monthly payments, and never disputed any portion of the account.

The Memorandum in Support of Ms. Hemmingsen's cross motion for summary judgment alleged that Discover produced no evidence showing that a contract or account existed between Discover and Ms. Hemmingsen, or that she had been unjustly enriched. These allegations were supported by Ms. Hemmingsen's affidavit averring that she never resided at the address shown on the account statements (where George lived when he applied for the account, before their marriage); never applied for or received a credit card, made charges on the account, or received account billing statements; and never “agreed to pay or otherwise be responsible for the debt owed.” Based on these averrals,

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the state court granted Ms. Hemmingsen summary judgment because there was no evidence she ever agreed to the terms of the account or benefitted from use of the credit card, and because George was responsible for the debt under the terms of the divorce decree. This lawsuit followed. After the Complaint was served, Discover accessed its Check Image Retrieval records and discovered a twenty-dollar payment on the account in May 2003 made by a check written on the couple's joint account, payable to Discover, signed by Ms. Hemmingsen, and referencing the credit card account number on the memo line. Ms. Hemmingsen did not recall but acknowledged the check in a subsequent deposition.²

II. The FDCPA Claims

Enacted “to eliminate abusive debt collection practices,” the FDCPA “imposes civil liability on ‘debt collector[s]’ for certain prohibited debt collection practices.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, –––U.S. ––––, 130 S.Ct. 1605, 1608, 176 L.Ed.2d 519 (2010). Ms. Hemmingsen alleges that M & K violated the following prohibitions set forth in 15 U.S.C. §§ 1692d, 1692e and 1692e(10), and 1692f:

§ 1692d. Harassment or abuse

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt....

§ 1692e. False or misleading representations

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

* * * * *

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt....

§ 1692f. Unfair practices

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt....

Ms. Hemmingsen's counsel acknowledged at oral argument that all her § 1692 claims are based upon the same conduct, namely, M & K drafting and filing in state court the summary judgment motion memorandum and supporting affidavit.

As initially enacted, the FDCPA exempted “any attorney-at-law collecting a debt ... in the name of a client” from the statutory definition of debt collector. Pub. L. 95–109, § 803(6)(F), 91 Stat. 874, 875 (1977). In 1986, reacting to the explosion of law firms conducting debt collection businesses, Congress repealed the exemption. Pub. L. 99–361, 100 Stat. 768; see H.R. Rep. 99–405, reprinted in 1986 U.S.C.C.A.N. 1752. In Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995), the Supreme Court held “that the Act applies to attorneys who ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation.” Therefore, the parties

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agree, M & K is a “debt collector” for purposes of the FDCPA. See 15 U.S.C. § 1692a(6).

Heintz answered the question whether the FDCPA applies to a lawyer who regularly collects consumer debts through litigation. But the circuit courts have...