McDaniel v. South & Associates, P.C., CIV.A.03-2210-GTV.
| Decision Date | 01 July 2004 |
| Docket Number | No. CIV.A.03-2210-GTV.,CIV.A.03-2210-GTV. |
| Citation | 325 F.Supp.2d 1210 |
| Parties | Dale McDANIEL, Isreal Owen Hawkins, Joshua Tribble, and Nicole Tribble, individually and on behalf of all others similarly situated, Plaintiffs, v. SOUTH & ASSOCIATES, P.C., Defendant. |
| Court | U.S. District Court — District of Kansas |
Geoffrey W. Clark, Mark C. Beam-Ward, William G. Wright, Hill, Beam-Ward & Kruse & Wilson, LLC, Overland Park, KS, for Plaintiffs.
Daniel B. Boatright, Stueve, Helder & Fiegel, LLP, Kansas City, MO, J. Nick Badgerow, Katherine Miller, Spencer Fane
Britt & Browne, Overland Park, KS, for Defendant.
Plaintiffs Dale McDaniel, Isreal Owen Hawkins, Joshua Tribble and Nicole Tribble (collectively "Plaintiffs") filed this action pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., against Defendant South & Associates, P.C. ("Defendant"). Specifically, Plaintiffs contend that Defendant improperly engaged in debt collection activity in violation of 15 U.S.C. § 1692g(b) after Plaintiffs disputed and requested verification of their respective debts.1 The matter is before the court on Plaintiffs Dale McDaniel, Josh Tribble and Nicole Tribble's motion for partial summary judgment (Doc. 30) and Defendant's motion for summary judgment against all claims of Plaintiffs (Doc. 28). For the reasons set forth below, Plaintiffs' motion is granted in part and denied in part, and Defendant's motion is granted in part and denied in part.
The following facts are undisputed by the parties. Defendant is a law firm that focuses its practice on foreclosures, collections and bankruptcy. As part of its foreclosure practice, Defendant represents holders of notes and mortgages in foreclosure proceedings. The present action concerns Defendant's alleged noncompliance with the FDCPA after it received individual foreclosure referrals for Plaintiffs Dale McDaniel, Josh and Nicole Tribble, and Isreal Owen Hawkins.
On December 5, 1996, Plaintiff Dale McDaniel executed a promissory note in the amount of $79,000 and a mortgage to secure repayment of the note to Equi-Financial, L.P. ("McDaniel Note and Mortgage").2 Mr. McDaniel used the money to purchase his personal residence located in Kansas City, Kansas.
On January 30, 2003, Defendant mailed Mr. McDaniel a validation letter to provide him notice, as required by the FDCPA, that it had been retained to collect the debt concerning his personal residence. The letter informed Mr. McDaniel that he had thirty days to dispute the debt in writing, or the debt would be assumed valid. The letter further stated that if Mr. McDaniel timely disputed the debt, Defendant would obtain verification of the debt and send it to him.
On February 15, Mr. McDaniel mailed a letter to Defendant, acknowledging receipt of Defendant's validation letter and informing Defendant that he disputed the claims and requested verification of the debt. Defendant received Mr. McDaniel's letter on February 19.
On February 26, 2003, Defendant mailed a petition to foreclose the McDaniel Note and Mortgage ("McDaniel Petition") to the District Court of Wyandotte County, Kansas, along with a summons for service on each defendant in the foreclosure action. The McDaniel Petition alleged that Mr. McDaniel failed to make installment payments on the McDaniel Note and Mortgage. The McDaniel Petition further requested judgment against Mr. McDaniel for $84,402.96, plus interest, and foreclosure of the mortgage. The clerk's office for the state district court file-stamped the McDaniel Petition on March 4, 2003. The McDaniel Petition was served by residential service on Mr. McDaniel's wife on March 6, 2003. Defendant published notice of the foreclosure action and notified Mr. McDaniel of that fact by letter on March 17, 2003.
On March 11, 2003, Defendant mailed the requested debt verification information to Mr. McDaniel.
On November 19, 1998, Plaintiffs Joshua and Nicole Tribble ("the Tribbles") executed a promissory note in the amount of $125,400 and a mortgage to secure repayment of the note to Crossland Mortgage Corporation ("Tribble Note and Mortgage").3 The Tribbles used the money to purchase their personal residence located in Overland Park, Kansas.
On January 6, 2003, Defendant mailed a letter to each of the Tribbles to provide them with notice that it had been retained to collect the debt concerning their personal residence. As with the letter Defendant sent to Plaintiff McDaniel, the Tribbles' letters informed them that they had thirty days to dispute the debt and obtain verification, or the debt would be assumed valid. The Tribbles immediately retained the services of an attorney to represent them regarding Defendant's attempt to collect the Tribble Note and Mortgage. On January 27, 2003, the Tribbles' attorney mailed and faxed a letter to Defendant, disputing the validity of the debt, and requesting a detailed verification of Defendant's allegations.
On or about January 23, Defendant mailed to the District Court of Johnson County, Kansas a petition to foreclose the Tribble Note and Mortgage ("Tribble Petition"), along with a summons for service on each defendant in the foreclosure action. The Tribble Petition alleged that the Tribbles failed to make installment payments on the Tribble Note and Mortgage. The Tribble Petition further requested judgment against the Tribbles for $120,864.16, plus interest, and foreclosure of the mortgage. The clerk's office for the state district court file-stamped the Tribble Petition on January 29, 2003. The Tribble Petition was served by personal service on Joshua Tribble on February 3, 2003.
On February 7, 2003, Defendant mailed an amended petition to foreclose the Tribble Note and Mortgage ("Amended Petition") to the District Court of Johnson County, Kansas. The Amended Petition stated that the Tribbles had filed for Chapter 7 bankruptcy relief and that the bankruptcy was discharged in November 2002. Furthermore, the Amended Petition requested judgment in rem against the Tribbles for $120,864.16, plus interest, and renewed the requests for relief contained in the original petition. The clerk's office for the state court file-stamped the Amended Petition on February 13. On February 21, the Amended Petition was served by personal service on Nicole Tribble.
On February 18, Defendant mailed letters to both Joshua and Nicole Tribble advising them that it was seeking to obtain service by publication against them pursuant to state law and attached a copy of the notice to be published in a local periodical for their review.
On March 10, 2003, Defendant notified the Tribbles that the foreclosure action had been dismissed. Defendant never provided the Tribbles with verification of the debt as requested by their attorney.
In July 1995, David and Marjorie Carson decided to assist Plaintiff Hawkins in acquiring a house. At the time, Mr. Hawkins was experiencing financial trouble, and because of the strong relationship he maintained with the Carsons, Mr. Carson promised him he would help him obtain a residence. Once Mr. Hawkins found the home he wanted in Kansas City, Kansas, the Carsons obtained a loan from Mercantile Bank and executed a promissory note and mortgage to secure repayment of the note ("Carson Note and Mortgage"). Mr. Hawkins did not sign any of the closing or loan documents. The money was used to purchase the home in Kansas City, Kansas. The Carsons never lived in the home; instead, they immediately sold the home to Mr. Hawkins pursuant to a contract for deed. Mr. Hawkins made monthly payments to Mr. Carson, who in turn made payments to Mercantile Bank.
In 1999, the Carsons refinanced the mortgage with American Federal Mortgage and entered into a second contract for deed with Mr. Hawkins. Again, Mr. Hawkins did not sign any of the closing or loan documents in connection with the refinancing. From this point forward, Mr. Hawkins no longer made any separate payments to Mr. Carson; he mailed his mortgage payments directly to the mortgage company. On July 22, 2001, the Carsons transferred the property to Mr. Hawkins pursuant to a quit claim deed. As a result of this transaction, Mr. Carson told Mr. Hawkins to deal directly with the mortgage company.
In February 2002, Defendant received a foreclosure referral from the current holder of the Carson Note and Mortgage, Litton Loan Servicing, LP ("Litton").4 Through discussions with a representative of Litton, Mr. Hawkins learned that Litton intended to refer the Carson Note and Mortgage to Defendant for foreclosure. On February 20, 2002, Mr. Hawkins prepared and faxed a handwritten letter to Defendant. He prepared the letter in the name of Mr. Carson, and signed Mr. Carson's name to the letter. The letter disputed the amount owed on the Carson Note and Mortgage due to payments that were allegedly misapplied. Mr. Hawkins's name did not appear on the letter. Also on February 20, Defendant mailed letters to each of the Carsons, as required by the FDCPA, stating that it had been retained to collect the debt concerning the residence in Kansas City, Kansas. Mr. Hawkins received the letters addressed to the Carsons a few days later. At the direction of Litton, however, the foreclosure referral was closed before any foreclosure activity transpired.
On April 16, 2002, Defendant again mailed letters to each of the Carsons, as required by the FDCPA, stating that it had been retained to collect the debt concerning the residence in Kansas City, Kansas. On April 30, 2002, Defendant mailed to the District Court of Wyandotte County, Kansas a petition to foreclose the Carson Note and Mortgage ("Carson Petition"), along with a summons for service on each defendant in the foreclosure action. As a resident at the property, Mr. Hawkins was a named defendant in the foreclosure action. The clerk's office for...
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