Simmons v. Miller

• Decision Date: 07 July 1997
• Docket Number: No. IP 96-1045C-T/G.,IP 96-1045C-T/G.
• Citation: 970 F.Supp. 661
• Parties: Elizabeth E. SIMMONS, f/k/a Elizabeth E. Pepper, Plaintiff, v. Peter D. MILLER, individually, and Peter D. Miller, P.C., an Indiana Corporation, Defendants.
• Court: U.S. District Court — Southern District of Indiana

970 F.Supp. 661

Elizabeth E. SIMMONS, f/k/a Elizabeth E. Pepper, Plaintiff, v. Peter D. MILLER, individually, and Peter D. Miller, P.C., an Indiana Corporation, Defendants.

No. IP 96-1045C-T/G.

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

July 7, 1997.

Robert M. Crane, Anderson, IN, for Plaintiff.

Peter D. Miller, Indianapolis, IN, pro se.

Entry Denying Plaintiff's Motion for Summary Judgment and Granting Defendants' Cross-Motion for Summary Judgment

TINDER, District Judge.

The parties' cross-motions for summary judgment are before the court. The court finds that Plaintiff's motion for summary judgment should be DENIED and that Defendants' cross-motion for summary judgment should be GRANTED.

I. Background

Plaintiff Elizabeth E. Simmons uttered a check on December 24, 1992, to Luxury Auto, Inc. ("LAI"). (Pl.'s Br. Supp. Mot. Partial Summ. J. at 5.) The $299.75 check was returned to LAI due to insufficient funds. (Id.) On February 3, 1992, LAI sent Plaintiff a letter requesting that she reimburse LAI for the check. (Schwartz Aff. ¶ 5, Ex. B.) Plaintiff may not have received the letter and she definitely did not reply to it, (Simmons Dep. at 20); and the Postal Service never returned the letter to LAI, (Schwartz Aff. ¶ 6). LAI, lacking any record of further reply or payment by Simmons, (Schwartz Aff. ¶ 7), referred the check to Defendants for collection, (id. ¶ 8). On November 9, 1994, the Defendants mailed a letter by certified mail, return receipt requested, in which they made a formal demand that Simmons make good on the check; the letter contained a Fair Debt Collection Practices Notice informing Simmons that she could dispute the validity of the debt within 30 days. (Eden Aff. ¶ 3, Ex. A.) Plaintiff signed for the letter on November 12, 1994.¹ (Id. ¶ 4, Ex. B; Simmons Dep. at 21.) Plaintiff took no action on the letter. (Simmons Dep. at 22-24; Eden Aff. ¶ 5.) On July 27, 1995, Defendants commenced a debt-collection lawsuit by filing a Notice of Claim on behalf of LAI seeking treble damages on the bad check pursuant to Indiana Code § 34-4-30-1. (Pl.'s Br. Supp. Mot. Partial Summ. J. at 5.)

II. Summary Judgment Standard

The Seventh Circuit stated the standard for summary judgment in Logan v. Commercial Union Ins. Co., 96 F.3d 971 (7th Cir. 1996):

Under FED.R.CIV.P. 56(c), summary judgment is warranted only if "there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law."

The initial burden of production rests with the moving party to identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting FED.R.CIV.P. 56(c)). Once the moving party satisfies this burden, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e).

Id. at 978. The nonmovant cannot just demonstrate some factual disagreement between the parties; the issue must be "material." Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). There is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party...." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also Sokaogon Chippewa Community v. Exxon Corp., 2 F.3d 219, 225 (7th Cir.1993), cert. denied, 510 U.S. 1196, 114 S.Ct. 1304, 127 L.Ed.2d 655 (1994); Colosi v. Electri-Flex Co., 965 F.2d 500, 503-04 (7th Cir.1992). If there is no genuine issue of material fact, the only question is whether the moving party is entitled to judgment as a matter of law. Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1014 (7th Cir.1996).

Supplementing Rule 56, this district promulgated Local Rule 56.1 to establish procedures for summary judgment motions. Local Rule 56.1 requires the party moving for summary judgment to file a Statement of Material Facts and the party opposing the motion to file a Statement of Genuine Issues "setting forth ... all material facts as to which it is contended there exists a genuine issue necessary to be litigated." S.D. IND. L.R. 56.1. The effect of these requirements is apparent:

In determining the motion for summary judgment, the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues" filed in opposition to the motion, as supported by the depositions, discovery responses, affidavits and other admissible evidence on file.

Id. Read together, Rule 56 and Local Rule 56.1 stand for the proposition that if the party opposing summary judgment fails to demonstrate the existence of a genuine issue of material fact, the facts offered by the movant, and contained in the record, are the basis of the summary judgment decision.

III. FDCPA Standard

The Fair Debt Collection Practices Act ("FDCPA") seeks "to eliminate abusive debt collection practices ... and ... to protect consumers against debt collection abuses." 15 U.S.C.A. § 1692(e) (West 1982 & Supp. 1997). The Seventh Circuit evaluates alleged violations of the FDCPA by viewing a debt collector's conduct through the eyes of the "unsophisticated consumer." Avila v. Rubin, 84 F.3d 222, 226 (7th Cir.1996) (rejecting the "least sophisticated consumer" standard). "The unsophisticated consumer standard protects the consumer who is uninformed, naive, or trusting, yet it admits an objective element of reasonableness. The reasonableness element in turn shields complying debt collectors from liability for unrealistic or peculiar interpretations of collection letters." Id.

IV. Discussion

With respect to Claims II, III and IV, Plaintiff alleges that Defendants "knew, or reasonable [sic] should have known, the claim [they filed] was time-barred." (Pl.'s Br. Supp. Mot. Partial Summ. J. at 15.) Plaintiff then maintains that, because the debt-collection suit was time-barred, the suit violates three provisions of the FDCPA in that: (1) the suit was a deceptive threat used in an attempt to collect an alleged debt from an unsophisticated consumer in violation of 15 U.S.C. § 1692e(2)(A), (id. at 16); (2) the suit violates 15 U.S.C. § 1692f(1) because the suit is not authorized by law or agreement, (id. at 16-18); and, (3) the suit violates the catch-all proscription against other improper conduct found in 15 U.S.C. § 1692d, (id. at 18-20).

Defendants' liability on Counts II, III and IV hinges on whether Defendants knowingly brought a time-barred action against Plaintiff. Plaintiff boldly cites Browning v. Walters, 616 N.E.2d 1040, 1046-47 (Ind.Ct. App.1993) for the proposition that Indiana law imposes a two-year statute of limitations on lawsuits filed pursuant to IND.CODE § 34-4-30-1. However, in the absence of a statute of limitations expressed in the statute, or until such time as the Indiana Supreme Court speaks on the matter, Browning is persuasive authority and not necessarily the law of Indiana. Commissioner v. Bosch, 387 U.S. 456, 464-66, 87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967) (where highest court of a state has not spoken, lower court rulings are not controlling); see Troue v. Marker, 145 Ind.App. 111, 249 N.E.2d 512, 514 (1969) (Indiana appellate courts are bound by Indiana Supreme Court pronouncements until changed, either by the Supreme Court or legislative enactment) (citing In re Petitions to Transfer Appeals, etc., 202 Ind. 365, 174 N.E. 812, 817 (1931)). In applying Indiana law, this court, and other Indiana courts trying to determine how the state's highest court might rule, may adopt the alternative view that the statute of limitations for the underlying substantive offense, here the six-year statute of limitations applicable to check deception, see IND.CODE §§ 34-1-2-2(5), should govern. See Ross v. Creighton Univ., 957 F.2d 410, 413 (7th Cir.1992) (in absence of state statute or controlling precedent, courts must determine how state's highest court would decide).

The Browning court observed that the Indiana Supreme Court had not yet spoken on the appropriate statute of limitations for actions brought pursuant to § 34-4-30-1. Browning, 616 N.E.2d at 1046. The Indiana Supreme Court still has not addressed the question. However, although this court is skeptical of Plaintiff's pronouncement that the two-year statute of limitations time-bars Defendants' debt-collection action, this court need not decide which limitations period is applicable.

This court need not decide Indiana law in this case, because, in determining whether Defendants violated the FDCPA, it is irrelevant which statute of limitations applies to the debt-collection action. As already noted, the FDCPA seeks to proscribe intentional creditor misconduct; yet, for one of at least three reasons, intentional misconduct is not present here. First, neither the Indiana Legislature nor the Indiana Supreme Court have pronounced that the two-year statute of limitations is the law of Indiana; therefore, the suit in fact may not have been time-barred. Second, even if the two-year statute of limitations was the law in Indiana, Defendants properly could have asserted a good-faith basis to change that law. See Orr v. Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987) (lawyers have professional responsibility to argue for modification or reversal of existing law); IND. RULES OF PROFESSIONAL CONDUCT Rule 3.1 (lawyers may bring actions based on good faith argument for modification or reversal of existing law)....