Bentrud v. Bowman, Heintz, Boscia & Vician, P.C.

794 F.3d 871, 2015 U.S. App. LEXIS 12977, 2015 WL 4509935
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 27, 2015
DocketNo. 14-2384
StatusPublished
Cited by45 cases

This text of 794 F.3d 871 (Bentrud v. Bowman, Heintz, Boscia & Vician, P.C.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bentrud v. Bowman, Heintz, Boscia & Vician, P.C., 794 F.3d 871, 2015 U.S. App. LEXIS 12977, 2015 WL 4509935 (7th Cir. 2015).

Opinion

KANNE, Circuit Judge.

Grant E. Bentrud owes Capital One Bank, N.A. (“Capital One”), money— $10,955.20 to be exact. He amassed that debt on his credit card, and he does not dispute it here. Bentrud’s dispute instead concerns the manner in which Capital One’s lawyers attempted to collect the debt. The way he sees it, Bowman, Heintz, Boscia & Vician, P.C. (“Bowman Heintz”), an Indiana law firm specializing in debt collection, committed multiple violations of the Fair Debt Collection Practices Act (“FDCPA”) during their collection efforts.

To remedy those alleged violations, Ben-trud commenced this action in the Southern District of Indiana. After a volley of motions between the parties, the district court granted summary judgment in favor of Bowman Heintz on each of Bentrud’s FDCPA claims. For the reasons expressed below, we affirm the judgment of the district court.

I. Background

The alleged FDCPA violations that form the basis for this federal case occurred in state court. On January 6, 2012, Bowman Heintz filed a complaint in Hendricks County Superior Court in Indiana. There, Bowman Heintz sought recovery of the full amount of Bentrud’s credit card debt owed to Capital One. The case proceeded unre-markably, and nearly ten months later, on October 1, 2012, Bowman Heintz filed a motion for summary judgment. See Ind. R. Trial P. 56(c).

Bentrud responded to that motion by invoking the arbitration provision in his credit card agreement with Capital One. The arbitration provision provides: “If you or we elect arbitration of a claim, neither you nor we will have the right to pursue that claim in court or before a judge or jury.” The state court granted Bentrud’s election of arbitration and denied Bowman Heintz’s motion for summary judgment. It also stayed the case, allowing Bentrud thirty days to initiate arbitration. If, however, Bentrud failed to initiate arbitration within that window, the court ordered the stay “automatically dissolved.”

That was a prescient order, because a eurveball quickly emerged: no one agreed to do the arbitration. The American Arbitration Association (“AAA”) declined because Capital One had previously failed to comply with its policy regarding consumer claims. Although it is unclear whether Bentrud, Bowman Heintz, or Capital One [873]*873attempted to contact other possible arbitrators, what is clear is that after AAA declined, efforts to arbitrate stalled. Ben-trud subsequently failed to meet the thirty-day deadline (April 11, 2013) set by the state court, which meant that the stay was automatically dissolved.

So on May 20, 2013, more than a month after the deadline to arbitrate had lapsed, Bowman Heintz filed a second motion for summary judgment.1

Importantly, that filing forms the first basis of Bentrud’s FDCPA case. For he characterizes that motion, made after he had elected to pursue arbitration of the debt claim, as an unfair or unconscionable means of attempting to collect a debt. See 15 U.S.C. § 1692f. This FDCPA claim, of course, did not arise until Bentrud filed his federal action in the Southern District of Indiana. At the time, Bentrud simply responded to the second motion for summary judgment with a combined “Verified Motion to Dismiss or Continue Stay.” The state court granted the continuance but denied the motion to dismiss. It extended his deadline to initiate arbitration to July 31, 2013 — three months after the original deadline. That extension worked, as Ben-trud and Capital One are now proceeding with arbitration of the state-law debt collection claim.

Bentrud has another FDCPA claim against Bowman Heintz. His second claim concerns interest rates. Two rates are at issue here: 10.65% and 13.9%. Bentrud claims that from May 17, 2009 to May 16, 2011, the Annual Percentage Rate (“APR”) on his credit card debt with Capital One was 13.9%. That APR is reflected on his May 16, 2011, statement from Capital One. Yet when Bowman Heintz filed its complaint in the state court action, it averred the applicable interest rate to be 10.65%. Bentrud, apparently unsatisfied with that reduced interest rate, sees impropriety in the averment.

So he advances an either-or argument against Bowman Heintz. Either the correct interest rate is 13.9%, in which case Bowman Heintz misrepresented the interest rate when it averred the interest rate to be 10.65% in its complaint. See 15 U.S.C. § 1692e (prohibiting misrepresentation of the amount of the debt). Or the correct interest rate is 10.65%, in which case Bowman Heintz attempted to collect a debt that was not authorized by the terms of the agreement. See 15 U.S.C. § 1692f(l) (prohibiting collection of a debt not authorized by the agreement). Regardless, he argues, Bowman Heintz violated the FDCPA.

Before turning to the merits, we make a couple of observations on this second FDCPA claim. First, Bentrud’s credit card agreement with Capital One expressly states that Capital One “may add, delete or change any term” of the agreement at “any time[J” That same agreement further states that Bentrud’s APR may go up or down, depending on the market index.

Second, record evidence demonstrates that Capital One formally changed Ben-trud’s rate to 10.65% on May 17, 2011— nearly seven months before Bowman Heintz filed its complaint. With that change came the deletion of the “D” designation accompanying the interest rate. According to the terms of the agreement, the presence of a “D” next to the interest rate signifies that the interest rate was calculated using the monthly prime rate [874]*874(3.25%) plus a previously disclosed margin. The earliest statement that Bentrud gave the district court — May 16, 2011 — listed a “D” next to the 13.9% interest rate. By contrast, the next statement — dated August 15, 2011 — lists the interest rate at 10.65% without the “D” designation. Some math: 13.9% minus the monthly prime rate of 3.25% equals 10.65% — the rate Bowman Heintz averred in its complaint.

II. Analysis

We review a district court’s grant of summary judgment de novo. Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir.2014). Summary judgment is appropriate where the admissible evidence reveals no genuine issue of any material fact. Fed.R.Civ.P. 56(c); Lawson v. CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001). A fact is “material” if it is one identified by the law as affecting the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. We “construe all facts and reasonable inferences in the light most favorable to the non-moving party.” Apex Digital, Inc. v. Sears, Roebuck, & Co.,

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Cite This Page — Counsel Stack

Bluebook (online)
794 F.3d 871, 2015 U.S. App. LEXIS 12977, 2015 WL 4509935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bentrud-v-bowman-heintz-boscia-vician-pc-ca7-2015.