West v. Abendroth & Russell Law Firm

45 F. Supp. 3d 959, 2014 U.S. Dist. LEXIS 129028, 2014 WL 4629061
CourtDistrict Court, N.D. Iowa
DecidedSeptember 16, 2014
DocketNo. C14-03030-LTS
StatusPublished
Cited by2 cases

This text of 45 F. Supp. 3d 959 (West v. Abendroth & Russell Law Firm) is published on Counsel Stack Legal Research, covering District Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West v. Abendroth & Russell Law Firm, 45 F. Supp. 3d 959, 2014 U.S. Dist. LEXIS 129028, 2014 WL 4629061 (N.D. Iowa 2014).

Opinion

ORDER ON MOTION FOR SUMMARY JUDGMENT

LEONARD T. STRAND, United States Magistrate Judge.

TABLE OF CONTENTS

I.INTRODUCTION........................................................961

II. RELEVANT FACTS.....................................................962

III. SUMMARY JUDGMENT STANDARDS....................................964

TV. ANALYSIS...................................................'...........965

A. Does West’s FDCPA Claim Fail as a Matter of Law?...................965

1. The Alleged Violation ............................................965

2. The Statutory Defense............................................967

B. Do West’s State Law Claims Fail as a Matter of Law?..................968

V. CONCLUSION................... ......................................968
I. INTRODUCTION

On April 25, 2014, plaintiff Katrina C. West (West) filed a pro se lawsuit in the Iowa District Court for Webster County against Abendroth and Russell Law Firm (Law Firm) and a defendant identified as “Jill (last name omitted).” Doc. No. 3. In her state court petition, West asserted the following causes of actions based on a conversation between a Law Firm employee and an employee of a debt solutions company regarding West:

Count 1: Violation of the Fair Debt Collection Practices Act (FDCPA)
Count 2: Negligent hiring
Count 3: Negligent training
Count 4: Negligent retention
Count 5:' Negligent supervision

Id. The defendant identified as “Jill (last name omitted)” was not served, did not appear and is no longer a party to this action.1

[962]*962On May 13, 2014, the Law Firm filed a notice (Doc. No. 1) of removal to this court, invoking federal question jurisdiction over Count 1 and (by implication) supplemental jurisdiction over the remaining, state law claims. This case was referred to me by order (Doc. No. 12) entered June 23, 2014, after the parties unanimously consented to trial, disposition and judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(3).

On July 29, 2014, the Law Firm filed a motion (Doc. No. 14) for summary judgment in which it contends that West’s claims fail as a matter of law. West filed a resistance (Doc. No. 15) and thé Law Firm filed a reply (Doc. No. 16). West then filed a response to the reply, without seeking leave of court to do so. Typically, the movant’s reply is the final document either party may file with regard to a motion for summary judgment. See, e.g., Local Rule 56. While West’s response to the reply could be stricken on that basis, I have elected to consider it in light of West’s status as a pro se litigant. Neither party has requested oral argument. I find that oral argument is not necessary. See Local Rule 7(c). The motion is fully submitted.

II. RELEVANT FACTS

The following facts are undisputed for purposes of the Law Firm’s motion:

On January 22, 2014, the Law Firm commenced a small claims lawsuit against West on behalf of Capital One Bank (USA), N.A. (Capital One). The lawsuit was filed in the Iowa District Court for Webster County as Case No. SCSC058505 (the Small Claims Action). In the Small Claims Action, which is public record, Capital One alleged that West owed a debt and costs totaling approximately $1,641.00.

West had previously retained Ultimate Debt Solutions (UDS) to assist her with financial matters and resolve her outstanding debts, including the debt that became the subject of the Small Claims Action. Throughout her relationship with UDS, West informed UDS about her financial situation, outstanding debts and other personal information. She also executed a power of attorney authorizing UDS to contact the Law Firm in order to settle or otherwise resolve the debt at issue. This power of attorney in favor of UDS was not submitted to the Law Firm. However, two powers of attorney West executed in favor of other debt solution companies were on file with the Law Firm.

On February 10, 2014, UDS representative Cathy Zebarth (Cathy) called the Law Firm and left a voicemail message stating she was calling on behalf of West. Later that day, Jill Christiansen (Jill) returned the call on behalf of the Law Firm. All incoming and outgoing collections-related calls at the Law Firm are recorded. This particular call was recorded as follows:
Cathy: Customer service, this is Cathy.
Jill: Cathy, my name is Jill. I’m returning your call from Abendroth and Russell Law Firm regarding your client, Katrina West.
Cathy: Yes. Okay, what did you need from me a social?
Jill: I need to verify social and date of birth.
Cathy: Social [omitted].
Jill: M-hmm.
Cathy: Date of birth [omitted].
Jill: Okay, and I do need to advise you that I am not an attorney, I’m a debt collector attempting to collect a debt, any information obtained will be for that purpose, and this call is being recorded. Okay. Capital One with a [963]*963balance of $1,641.01. How can I help you with that?
Cathy: Okay—um—calling because she is interested in possibly settling this debt. Should I make a settlement offer to you, how do you ... ?
Jill: I’ll tell you what I can settle for. I can settle for $1394.
Cathy: How many payments can we do that?
Jill: It would have to be a lump sum payment.
Cathy: Okay. I think I just wrote down wrong—what did you say $13 ...
Jill: One thousand three ninety-four eighty-five.
Cathy: Eighty-five, and it has to be a lump sum. Okay. I will check with the customer and get back to you. Did you have my power of attorney on file?
Jill: Uh, we do—let me just double-check. We have two on file, I think. Clear Our Debt Defense, Clear Solutions, is that correct?
Cathy: We’re Ultimate Debt Solutions.
Jill: Ultimate Debt? We have two on file already. I guess you can fax it .over to me at 515-278-0091.
Cathy: Okay, I’ll get ours over there to you.
Jill: And you calling from Marilyn Mauz’s office?
Cathy: Nope. No, we are Ultimate Debt Solutions—we’re in Arizona—Scottsdale, Arizona. I believe she’s with a company called DBS before she came over here.
Jill: Okay.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Makhnevich v. Bougopoulos
E.D. New York, 2022
Scott v. Portfolio Recovery Associates, LLC
139 F. Supp. 3d 956 (S.D. Iowa, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
45 F. Supp. 3d 959, 2014 U.S. Dist. LEXIS 129028, 2014 WL 4629061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-v-abendroth-russell-law-firm-iand-2014.