Lester v. Portfolio Recovery Assocs., LLC

324 F. Supp. 3d 1227
CourtDistrict Court, N.D. Alabama
DecidedAugust 24, 2018
DocketCase No.: 1:18-CV-0267-VEH
StatusPublished
Cited by2 cases

This text of 324 F. Supp. 3d 1227 (Lester v. Portfolio Recovery Assocs., LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lester v. Portfolio Recovery Assocs., LLC, 324 F. Supp. 3d 1227 (N.D. Ala. 2018).

Opinion

VIRGINIA EMERSON HOPKINS, United States District Judge

Before the Court is Defendant Portfolio Recovery Associates, LLC,'s ("PRA")

*1230Amended Motion for Leave To Supplement the Record (the "Amended Motion for Leave"). (Doc. 25). As more specifically set out below, the Amended Motion for Leave fails to comply with this Court's Uniform Initial Order and is due to be DENIED for that reason. It is also due to be DENIED for the alternative reason that the facts and documents that PRA seeks to add to the record on appeal are either already in the record or would improperly add to the appellate record facts and documents that were not before this Court at the time it entered the Order being appealed. This Court will not join with PRA in misrepresenting the record on appeal.

I. BACKGROUND

Plaintiff William Lester, Jr., filed this suit against PRA alleging that PRA continues to falsely report to credit reporting agencies that Plaintiff owes $3,046 on a certain account. (Doc. 1-1 at 13-16, ¶¶ 59, 60, 66, 78, 83, 91). The account at issue ends with the numbers -4658 and is associated with a Lowes Home Improvement credit card (the "Account"). The credit card was issued by Synchrony Bank ("Synchrony"), but PRA purchased the Account.

On May 3, 2018, PRA filed a Motion To Stay or Dismiss Proceedings and Compel Arbitration (the "Arbitration Motion"). (Doc. 16). On the same day, PRA also filed its Brief in support of its Arbitration Motion. (Doc. 17). Attached to the Brief in support of the Arbitration Motion was a Declaration of Martha A. Koehler ("Ms. Koehler"), the Manager of Litigation Support for Synchrony (the "Synchrony Declaration"). (Doc. 17-1). Attached to the Synchrony Declaration are several exhibits. (See id. ) In the Synchrony Declaration, Ms. Koehler states, inter alia : "Enclosed within the billing statement dated February 28, 2012 was a change in the terms to the Account. The change in terms is attached hereto as Exhibit B ." (Id. at 3, ¶ 8). Indeed, the change in terms (the "Change in Terms") is attached as Exhibit B. (Id. at 8-9). In the Synchrony Declaration, Ms. Koehler also states, inter alia : "According to Synchrony's records, Synchrony sold the Account to [PRA] in June 2016. The Account was one of the accounts sold by Synchrony to [PRA] under the Bill of Sale and Affidavit of Sale of Account annexed hereto as Exhibit G ." (Id. at 3, ¶ 14). Although Ms. Koehler references an "Affidavit of Sale of Account" (the "Affidavit of Sale"), no Affidavit of Sale is attached to the Synchrony Declaration in Exhibit G. (See id. at 25-26).

On May 17, 2018, Plaintiff filed his opposition (doc. 19) to the Arbitration Motion, and on May 22, 2018, the Court set a hearing on it for June 20, 2018. (Doc. 20).

At the hearing, the Court pointed out that Plaintiff had said that the Synchrony Declaration "references documents that are supposedly attached that aren't." (Doc. 22 at 13-14). PRA's attorney responded that the part of the Synchrony Declaration stating that the Affidavit of Sale was attached as Exhibit G was a "typographical error." (Id. at 14). Furthermore, PRA's attorney stated, "I don't know that there's an affidavit of sale of account that exists." (Id. ) PRA's attorney later made clear PRA's view that this was a typo by stating, "That was a typo in this declaration. [The Affidavit of Sale] wasn't something that was intended to be attached as Exhibit G. I'm not aware of." (Id. at 15). On a separate matter regarding a sale notification letter (the "Sale Notification Letter"), the following exchange took place between PRA's attorney and the Court:

[PRA's Attorney]: ... We don't think we need something to magically say this has been assigned. But, Your Honor, this is what I handed up to your clerk before the hearing today. If the Court *1231really lie [sic] believes that that is necessary, here it is. This letter - -
THE COURT: Did you give a copy of this to - -
[PRA's Attorney]: Yes, before the hearing, Your Honor.
THE COURT: Thank you.
[PRA's Attorney]: This letter itself, we don't believe you have to [sic] the magic word of assign, and I want to make that point very clear.

(Id. at 55-56). The Sale Notification Letter was not mentioned at any other time during the hearing.

On July 11, 2018, the Court issued a Memorandum Opinion and Order denying the Arbitration Motion. (Doc. 21). The Court stated,

Accordingly, on these facts, and in light of the Defendant's underdeveloped argument on this issue, the Court HOLDS that Synchrony only transferred to PRA the right to collect Lester's receivable. Because the right to compel arbitration for the Plaintiff's claims is not associated with legally enforcing, filing suit, collecting, settling, or a similar action with respect to the receivable, the Court cannot hold that Utah Code Ann. § 70A-9a-404, or any other (un-cited) provision of Utah law, operates to give PRA the right to arbitrate the claims in this case. The Motion is DENIED .

(Id. at 16-17) (emphasis added).

On August 10, 2018, PRA filed a Notice of Appeal as to the Court's Memorandum Opinion and Order denying its Arbitration Motion. (Doc. 24). On the same day, PRA filed a Motion for Leave To Supplement the Record (the "Motion for Leave") (doc. 23), which the Court denied on August 14, 2018, for failure to comply with the Court's Uniform Initial Order (doc. 7). (Doc. 26).

The day before the Court denied the Motion for Leave, however, on August 13, 2018, PRA filed its Amended Motion for Leave. (Doc. 25). PRA represents that the Amended Motion for Leave was "amended solely to indicate the motion is opposed and to set forth the information required by Section IV, Paragraph B of the Court's Uniform Scheduling Order." (Id. at 1 n.1). In its Amended Motion for Leave, PRA requests that this Court supplement the record with certain facts and with "the declaration with exhibits that is attached hereto Exhibit 1 " (id. at 2, 5), which includes four documents. (See doc. 25-1).

II. STANDARDS

A. This Court's General Authority To Enforce Its Orders

That federal courts are accorded certain inherent powers is well-established. Chambers v. NASCO, Inc. , 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).

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324 F. Supp. 3d 1227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lester-v-portfolio-recovery-assocs-llc-alnd-2018.