Kirby v. Richard D. White, Jr., Kara Pratt, Barber & Bartz, PC, Case No. 15-CV-034-JHP-TLW

CourtUnited States District Courts. 10th Circuit. Northern District of Oklahoma
Writing for the CourtJames H. Payne United States District Judge Northern District of Oklahoma
Docket NumberCase No. 15-CV-034-JHP-TLW
Decision Date30 December 2016

ELBERT KIRBY, JR. and KAY KIRBY, Plaintiffs,

Case No. 15-CV-034-JHP-TLW


December 30, 2016


Before the Court are (1) Defendants Richard D. White, Jr., Kara Pratt, Barber & Bartz, PC, and Asset Acquisition Group, LLC's Motion for Summary Judgment (Doc. No. 48), (2) Plaintiffs Elbert Kirby, Jr. and Kay Kirby's Motion for Summary Judgment (Doc. No. 56), and (3) Plaintiffs Elbert Kirby, Jr. and Kay Kirby's Second Motion for Extension of Time to Respond to Defendants' Motion for Summary Judgment (Doc. No. 58). After consideration of the briefs, and for the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED and Plaintiffs' Motions are DENIED.


Plaintiffs Elbert Kirby, Jr. ("Mr. Kirby") and Kay Kirby (together, "Plaintiffs"), proceeding pro se and in forma pauperis, brought this action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., to recover against the Defendants for alleged FDCPA violations. Plaintiffs' Complaint (Doc. No. 2) provides no factual detail regarding the alleged FDCPA violations, but alleges all Defendants are debt collectors who failed to advise Plaintiffs of

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their due process rights reserved at 15 U.S.C. § 1692g "by failing and refusing to validate an alleged debt after repeated, timely requests to do so." (Doc. No. 2, at 1-2, 4). Plaintiffs further allege all Defendants repeatedly violated 15 U.S.C. § 1692e "by making false and misleading representations of an alleged debt including the status of an alleged debt and filing a time-barred suit of an alleged debt" and by "repeatedly ignor[ing] available proof that the alleged debt was not prosecuted in the name of the real party in interest as the original lender or holder in due course and also ignoring the suit is without the statute of limitations." (Id. at 2-4). Plaintiffs also allege Defendants attempted to take property "via sham judicial proceedings and threatening imprisonment." (Id. at 4).

The parties have now filed cross-motions for summary judgment. (Doc. Nos. 48, 56). Based on Defendants' Motion for Summary Judgment (Doc. No. 48), it is evident this case stems from Mr. Kirby's nonpayment on an automobile lease agreement. (See Doc. No. 48-2 (Motor Vehicle Lease Agreement, Aug. 14, 2006); Doc. No. 48-8 (Letter from BMW Financial Services to Mr. Kirby, July 27, 2009)). The lease transaction for the 2006 BMW X5 automobile was financed by BMW Financial Services, which perfected a lien on the vehicle. (Doc. No. 48, at 2 (Undisputed Fact No. 2); Doc. No. 48-5 (BMW Financial Services Consumer Credit Application); Doc. No. 48-6 (Application for Oklahoma Certificate of Title for a Vehicle)).1

On July 27, 2009, BMW Financial Services sent Mr. Kirby a Final Demand Notice, notifying Mr. Kirby his account was in default and may be turned over to collection if he did not remit full payment within ten days of the Notice. (Doc. No. 48-8). The vehicle was later repossessed and sold at auction. (Doc. No. 48, at 3 (Undisputed Fact No. 4)). On October 20,

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2009, BMW Financial Services sent Mr. Kirby a letter titled, "Auction Breakdown," in which Mr. Kirby was notified of the sale and deficiency balance due of $9,971.27. (Doc. No. 48-9). The letter stated payment was due within fourteen days after the date of the letter, and the account may be assigned to a third party for continued collection activity if payment was not made or other arrangements agreed to within that time. (Id.).

On March 30, 2012, BMW Financial Services and BMW Bank of North America assigned their right to Mr. Kirby's account to Defendant Asset Acquisition Group, LLC. ("AAG"). (Doc. No. 48-10). On August 10, 2012, AAG contacted Mr. Kirby, who requested verification of the debt. (Doc. No. 48, at 3 (Undisputed Fact No. 6); Doc. No. 48-11 (Letter from AAG to Elbert Kirby, Aug. 10, 2012)). On August 10, 2012, AAG sent Mr. Kirby a letter disclosing the prior creditor, prior account number, and current balance, along with related documentation including the Lease Agreement, Consumer Credit Application, previous correspondence from BMW Financial Services, and the Assignment to AAG. (Doc. No. 48-11).

On November 16, 2012, attorney Christopher J. Petersen sent Mr. Kirby a letter advising him that his account had been referred to Mr. Petersen's law firm for collection. (Doc. No. 48-12). The letter advised Mr. Kirby, in bold capital letters, of his right to dispute the validity of the debt within thirty days and of his right to receive verification of the debt. (Id.). The letter also stated that it was an attempt to collect a debt, and that the communication was from a debt collector. (Id.). On December 11, 2012, Mr. Kirby responded to Mr. Petersen's letter by asking him to "cease all communications with me in regard to the debt referenced above" and by "formally disput[ing] the validity of this debt." (Doc. No. 48-13). In his letter, Mr. Kirby also posed fourteen "questions" to Mr. Petersen to answer "in order that I might ascertain whether the alleged debt is indeed binding upon me and/or my spouse, if any." (Id.). Mr. Kirby notified Mr. Petersen that if

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he did not provide the requested information within ten days, "I will consider the purported debt to be invalid, that you made a mistake, and that you agree to sanctions imposed against you and your organization for knowingly continuing a frivolous claim against me. Your silence will be considered your acquiescence." (Id.).

Collection on Mr. Kirby's account was then referred to Defendant Barber & Bartz. (Doc. No. 48, at 4 (Undisputed Fact No. 9)). On January 24, 2014, Defendant Richard D. White, Jr., of Barber & Bartz sent Mr. Kirby a letter advising him the account had been referred to Barber & Bartz for collection of $9,971.27. (Doc. No. 48-14). The letter contained the same notice as Mr. Petersen's letter regarding Mr. Kirby's rights to dispute the validity of the debt within thirty days and to receive verification of the debt. (Id.). On February 6, 2014, Mr. White caused a Petition to be filed in the District Court of Tulsa County on behalf of AAG against Mr. Kirby, seeking the sum of $9,971.27 for breach of contract. (Doc. No. 48-15 (Petition in Case No. CS-2014-00844 (the "Tulsa County case"))). On February 7, 2014, Mr. Kirby sent Mr. White a letter containing the same language as he had previously sent to Mr. Petersen on December 11, 2012. (Doc. No. 48-16). Mr. White responded to Mr. Kirby on February 11, 2014, by providing copies of documentation supporting the debt he had received from AAG. (Doc. No. 48, at 5 (Undisputed Fact No. 12); Doc. No. 48-17).

Mr. Kirby did not answer or otherwise plead in the Tulsa County case, and a default judgment was entered against him on June 25, 2014. (Doc. No. 48-19 (Journal Entry of Judgment in Tulsa County District Court Case No. CS-2014-00844)). Mr. Kirby later attempted via motion to vacate the judgment in the Tulsa County case, but Mr. Kirby's motion was denied. (Doc. No. 48-21 (Order denying Defendant's Motion to Vacate Default Judgment in Tulsa County District Court Case No. CS-2014-844)). Mr. Kirby appealed the District Court's judgment, which the

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Oklahoma Court of Civil Appeals denied on June 24, 2016, and affirmed again on rehearing on August 3, 2016. (See Doc. No. 55-1 (June 24, 2016 Order affirming trial court's order); Doc. No. 62-2 (Aug. 3, 2016 Opinion affirming trial court's order on rehearing)). Defendant Kara Pratt, an attorney with Barber & Bartz, participated in the Tulsa County case by causing certain filings to be made in that case. (See Doc. No. 48, at 6 (Undisputed Fact No. 17); Doc. No. 48-23).

Plaintiff Kay Kirby has not been the subject of any collection activities in this case. (Doc. No. 48, at 6 (Undisputed Fact No. 19)). On July 11, 2016, Defendants requested leave of Court to file a Supplemental brief in support of their Motion for Summary Judgment, which this Court granted. (Doc. No. 52; see Doc. No. 55). Plaintiffs filed a Response on August 15, 2016. (Doc. No. 59). Defendants did not file a reply brief.

On August 1, 2016, Plaintiffs filed a cross-Motion for Summary Judgment. (Doc. No. 56). Defendants filed a Response to Plaintiffs' Motion on August 22, 2016. (Doc. No. 62). Plaintiffs filed a Reply on August 30, 2016. (Doc. No. 64).


Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Id. In making this determination, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. However, a party opposing a motion for summary judgment may not simply allege there are disputed issues of fact; rather, the party must support its assertions by citing to the record or by showing the moving party cannot produce admissible evidence to support the fact.

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Fed. R. Civ. P. 56(c). Thus, the inquiry for this Court 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, 477 U.S. at 251-52.

The Court further notes that, while pro se pleadings must be liberally construed and must be held to less stringent standards than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), a district court should not assume the role of advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Moreover, even pro se...

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