Slenk v. Trans World Sys., No. 99-16231

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtTROTT
Citation236 F.3d 1072
Decision Date10 January 2001
Docket NumberNo. 99-16231
Parties(9th Cir. 2001) ROBERT D. SLENK; CHRIS SLENK, Plaintiffs-Appellants, v. TRANS WORLD SYSTEMS, INC., Defendant-Appellee

Page 1072

236 F.3d 1072 (9th Cir. 2001)
ROBERT D. SLENK; CHRIS SLENK, Plaintiffs-Appellants,
v.
TRANS WORLD SYSTEMS, INC., Defendant-Appellee.
No. 99-16231
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted November 14, 2000
Filed January 10, 2001

Page 1073

John Harris Paer, Honolulu, Hawaii, for the plaintiffs appellants.

Neil F. Hulbert, Alston Hunt Floyd & Ing, Honolulu, Hawaii, for the defendant-appellee.

Appeal from the United States District Court for the District of Hawaii Helen Gillmor, District Judge, Presiding. D.C. No.CV-98-00430-HG

Before: Procter Hug, Jr., Chief Judge, Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.

TROTT, Circuit Judge:

Robert D. Slenk ("Slenk") and his wife, Chris Slenk, appeal the United States District Court for the District of Hawaii's ("the district court") order granting summary judgment to Transworld Systems ("Transworld"). Slenk brought this consumer protection action alleging that Transworld had engaged in abusive debt collection practices violative of the Fair Debt Collection Practices Act ("FDCPA"), the Hawaii Unfair and Deceptive Acts and Practices Act ("UDAP"), and Hawaii's statutory prohibition on monopolies and illegal restraints of trade. Transworld argues that Slenk is precluded from invoking the protections afforded by the foregoing statutes because the debt at issue was not a consumer debt. We have jurisdiction under 28 U.S.C. 1291, and REVERSE and REMAND the case to the district court for further proceedings.

I
BACKGROUND

Slenk is the owner and sole employee of Slenk's Builders. Slenk's Builders is licensed as a general contractor to do carpentry work in Hawaii. On December 9, 1993, Slenk purchased a backhoe from Hawaii Tractor, Ltd. Slenk contends that he purchased the backhoe for the sole purpose of building his family home and driveway. It is undisputed that the backhoe was ultimately used by Slenk for this purpose only and was sold immediately thereafter. The backhoe was never used by Slenk's Builders, nor has Slenk's Builders ever been licensed to use a backhoe.

However, the record reflects substantial documentary evidence suggesting that the backhoe was purchased for business purposes. The invoice documenting the sale ("Invoice") lists "Slenk Bldrs" as the purchaser, and shows that Slenk's Builders paid the lower 0.5% sales tax applicable to business purchases, rather than the customary 4% sales tax charged for consumer purchases.

Page 1074

In an application for a city building permit for the construction of his home and driveway, dated April 4, 1994, Slenk identified the building contractor as "Slenk's Bldrs." By mak-ing this representation, Slenk was able to streamline the permit process by avoiding additional procedural requirements that are required of a private owner-builder who does not have a contractor's license.

Moreover, on Slenk's tax returns for 1993, the backhoe was listed as the property of Slenk's Builders. This characterization permitted Slenk and his wife to expense the total cost of the backhoe. See 26 U.S.C. 6065.

On January 14, 1994, Slenk obtained a loan from the Honolulu Fire Department Federal Credit Union ("Credit Union Loan") in an attempt to finance the previously purchased backhoe. It was this loan that gave rise to the present controversy. The loan agreement was signed by Slenk as an individual, rather than as Slenk's Builders, and identified the intended use for the loan as the purchase of "excavation equipment [and] other personal goods." Despite the loan agreement's reference to "other personal goods, " it is undisputed that Slenk used the entire loan to finance the purchase of the backhoe.

Slenk subsequently failed to repay the Credit Union Loan, causing his account to be assigned to Transworld Systems, a national collection agency. Between June and September of 1997, Transworld sent seven collection letters to Slenk in his capacity as an individual, and called him and his wife at home on numerous occasions.

In response to Transworld's actions, Slenk filed the instant suit alleging that Transworld's collection practices violated: (1) the FDCPA, 15 U.S.C. 1692-1692o;1 (2) its Hawaii state law counterpart, the UDAP, HAW. R EV. STAT. 443B; and (3) HAW. REV. STAT . 480, dealing with monopolies and restraints of trade. Transworld moved for, and was granted, summary judgment by the district court on the ground that the Credit Union Loan was commercial in nature, and, as such, did not fall within the protective purview of these statutes.

II
DISCUSSION

A. Standard of Review

A grant of summary judgment is reviewed de novo . See Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether (1) there are any genuine issues of material fact, and (2) whether the district court correctly applied the relevant substantive law. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

B. The District Court Erroneously Concluded that No Genuine Issue of Material Fact Existed as to Whether the Credit Union Loan was a Consumer Debt

The district court erred in concluding that no genuine issue of material fact existed as to whether Slenk's Credit Union Loan was a consumer debt for purposes of the FDCPA and the UDAP. The FDCPA precludes debt...

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  • Aspen Skiing Co. v. Cherrett (In re Cherrett), No. 14-60079.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 16, 2017
    ...is created or retained against the consumer's dwelling to finance [its] acquisition"); cf. Slenk v. Transworld Sys., Inc. , 236 F.3d 1072, 1076 (9th Cir. 2001) (looking to "the actual use to which [a] backhoe was put" in concluding that its financing was consumer debt under t......
  • Chung v. U.S. Bank, N.A., Civ. No. 16-00017 ACK-RLP.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • April 17, 2017
    ...is "primarily for personal, family, or household purposes." 15 U.S.C. § 1692a(5) ; see also Slenk v. Transworld Sys., Inc., 236 F.3d 1072, 1075 (9th Cir. 2001) (stating that the FDCPA applies to consumer debts and not business loans). When classifying a loan, courts examine the tr......
  • Clark v. Capital Credit & Collection Serv., No. 04-35563.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 24, 2006
    ...1142, 1145(9th Cir.1998), and the district court's rulings on cross-motions for summary judgment, see Slenk v. Transworld Systems, Inc., 236 F.3d 1072, 1074 (9th The Clarks argue that, because of Mr. Clark's letters "preclud[ing] any phone calls to [Mrs. Clark] . . . or to [their] home......
  • Nelson v. Farm Credit Services of North Dakota, Case No. A4-05-012.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • August 9, 2005
    ...County, 597 F.2d 895, 896 (5th Cir.1979); Gallegos v. Stokes, 593 F.2d 372, 375 (10th Cir.1979)); Slenk v. Transworld Systems, Inc., 236 F.3d 1072, 1075 (9th Cir.2001); Gombosi v. Carteret Mortgage Corp., 894 F.Supp. 176, 180 (E.D.Pa.1995); Federal Deposit Ins. Corp. v. Hughes Development C......
  • Request a trial to view additional results
78 cases
  • Aspen Skiing Co. v. Cherrett (In re Cherrett), No. 14-60079.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 16, 2017
    ...is created or retained against the consumer's dwelling to finance [its] acquisition"); cf. Slenk v. Transworld Sys., Inc. , 236 F.3d 1072, 1076 (9th Cir. 2001) (looking to "the actual use to which [a] backhoe was put" in concluding that its financing was consumer debt under t......
  • Chung v. U.S. Bank, N.A., Civ. No. 16-00017 ACK-RLP.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • April 17, 2017
    ...is "primarily for personal, family, or household purposes." 15 U.S.C. § 1692a(5) ; see also Slenk v. Transworld Sys., Inc., 236 F.3d 1072, 1075 (9th Cir. 2001) (stating that the FDCPA applies to consumer debts and not business loans). When classifying a loan, courts examine the tr......
  • Clark v. Capital Credit & Collection Serv., No. 04-35563.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 24, 2006
    ...1142, 1145(9th Cir.1998), and the district court's rulings on cross-motions for summary judgment, see Slenk v. Transworld Systems, Inc., 236 F.3d 1072, 1074 (9th The Clarks argue that, because of Mr. Clark's letters "preclud[ing] any phone calls to [Mrs. Clark] . . . or to [their] home......
  • Nelson v. Farm Credit Services of North Dakota, Case No. A4-05-012.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • August 9, 2005
    ...County, 597 F.2d 895, 896 (5th Cir.1979); Gallegos v. Stokes, 593 F.2d 372, 375 (10th Cir.1979)); Slenk v. Transworld Systems, Inc., 236 F.3d 1072, 1075 (9th Cir.2001); Gombosi v. Carteret Mortgage Corp., 894 F.Supp. 176, 180 (E.D.Pa.1995); Federal Deposit Ins. Corp. v. Hughes Development C......
  • Request a trial to view additional results

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