Ralph Johnson v. Discover Bank

• Court: Court of Appeals of Kentucky
• Decided: November 16, 2023
• Docket: 2022 CA 001208
• Status: Unknown

Opinion

RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1208-MR

RALPH JOHNSON APPELLANT

APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE VERNON MINIARD, JR., JUDGE ACTION NO. 16-CI-00287

DISCOVER BANK APPELLEE

OPINION AFFIRMING

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BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.

ACREE, JUDGE: Appellant, Ralph Johnson, appeals the Russell Circuit Court’s

September 14, 2022 Order granting summary judgment for Appellee, Discover

Bank (Discover), on Appellant’s counterclaim in the underlying action. We

affirm.

Discover filed suit against Appellant for credit card debt, alleging he

owed Discover $26,026.02. Appellant disputes ever creating the debt. He states in

his brief he worked as the personal dentist and doctor for King Abdullah bin Abdulaziz Al Saud, former King of Saudi Arabia, which required him to live in

Saudi Arabia for a period of years. Appellant states Discover demanded payment

of this debt upon his return to the United States.

Discover’s one-page complaint simply asserts Appellant owes

Discover $26,026.02, that venue is proper, and requests the amount of the debt and

costs associated with the action. Appellant then filed his counterclaim, alleging

Discover engaged in illegal debt collection practices.

Appellant argues the only proof in this case is his answers to

Discover’s second set of interrogatories, wherein Appellant states he never

authorized or agreed to the charges at issue and that Discover has not offered proof

to rebut this assertion. These answers to interrogatories also assert Discover’s

actions were violations of the “Unfair Debt Collection Statute” – presumably, the

Fair Debt Collection Practices Act, 15 U.S.C.1 § 1692 et seq. (FDCPA) – and that

Appellant has suffered financial loss and other harm as a result.

Discover moved for summary judgment both on its claim against

Appellant and on Appellant’s counterclaim. Appellant moved to dismiss the

action. The circuit court denied both motions as premature. Appellant then filed

an amended answer and counterclaim. Discover moved for partial summary

judgment, arguing Appellant had not asserted a viable claim under the FDCPA.

1 United States Code.

-2- The circuit court agreed and dismissed Appellant’s FDCPA counterclaim with

prejudice. Appellant now appeals the dismissal of his counterclaim.

Summary judgment is proper “if the pleadings, depositions, answers

to interrogatories, stipulations, and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” CR2 56.03. “The

record must be viewed in a light most favorable to the party opposing the motion

for summary judgment and all doubts are to be resolved in his favor.” Steelvest,

Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Therefore,

summary judgment is appropriate “where the movant shows that the adverse party

could not prevail under any circumstances.” Id. Appellate courts review a trial

court’s grant of summary judgment de novo. Cmty. Fin. Servs. Bank v. Stamper,

586 S.W.3d 737, 741 (Ky. 2019).

The circuit court’s order granting partial summary judgment simply

grants Discover’s motion without making any findings of fact or conclusions of

law. Appellant argues the circuit court violated CR 52 as a result. Relatedly,

Appellant argues that, because counsel for Discover drafted and tendered the order,

the circuit court “abdicated its duty” to make findings of fact or conclusions of law.

The statement concerning oral argument in Appellant’s brief goes so far as to

2 Kentucky Rules of Civil Procedure.

-3- describe this alleged error as “blatant,” “elementary,” and “so simple that an oral

argument should not be necessary.” (Appellant’s Brief at ii.)

Appellant partially quotes CR 52.01 as follows:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment; and in granting or refusing temporary injunctions or permanent injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action . . . . [Sic.]

(Appellant’s Brief at 5) (quoting CR 52.01). Appellant’s appellate counsel

seemingly believes the ellipsis at the end of this partial quotation can somehow

eliminate from this Court’s consideration portions of the rule that defeat his

argument in toto. That is not how an ellipsis works.

As counsel for Appellant is certainly aware, the part of CR 52.01 he

replaces with an ellipsis addresses its relationship with CR 56, the rule upon which

the judgment under review is based. It says, “Findings of fact and conclusions of

law are unnecessary on decisions of motions under Rules 12 or 56 or any other

motion except as provided in Rule 41.02.” CR 52.01. Our civil rules plainly do

not require decisions on summary judgment motions to have findings of fact and

conclusions of law.

Appellant also argues that genuine issues of material fact exist such

that Discover was not entitled to a judgment as a matter of law on Appellant’s

-4- counterclaim. However, Discover is not a debt collector as contemplated by the

FDCPA and is thus excluded from its applicability. “Creditors who collect in their

own name and whose principal business is not debt collection . . . are not subject to

the Act.” Aubert v. Am. Gen. Fin., Inc., 137 F.3d 976, 978 (7th Cir. 1998); see

also Staub v. Harris, 626 F.2d 275, 277 (3d Cir. 1980) (“The statute does not apply

to persons or businesses collecting debts on their own behalf.”). Any issue of fact

– genuine or otherwise – regarding Appellant’s alleged debt to Discover is

therefore immaterial to Appellant’s asserted counterclaim under the FDCPA.

Because the circuit court was not required to include findings of fact

and conclusions of law in its summary judgment order, and because Appellant’s

debt to Discover falls beyond the scope of the FDCPA, we affirm the circuit

court’s September 14, 2022 order.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Derrick G. Helm W. Scott Stinnett Jamestown, Kentucky Louisville, Kentucky

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