Whitehead v. Discover Bank

118 F. Supp. 3d 1111, 2015 U.S. Dist. LEXIS 103617, 2015 WL 4668758
CourtDistrict Court, E.D. Wisconsin
DecidedAugust 7, 2015
DocketCase No. 15-C-0261
StatusPublished
Cited by3 cases

This text of 118 F. Supp. 3d 1111 (Whitehead v. Discover Bank) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitehead v. Discover Bank, 118 F. Supp. 3d 1111, 2015 U.S. Dist. LEXIS 103617, 2015 WL 4668758 (E.D. Wis. 2015).

Opinion

DECISION AND ORDER

LYNN ADELMAN, District Judge.

David and Terri Whitehead have filed a complaint under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the Wisconsin Consumer Act, Wis. St'at. § 427.104, against Discover Bank and the law firm of Messerli & Kramer. Before me now is the defendants’ motion to dismiss the complaint.

I. BACKGROUND

Discover Bank obtained two default judgments against David Whitehead in state court in Walworth County, Wisconsin. The first judgment was entered in December 2011, and the second judgment was entered in January 2012. In March 2014, Discover Bank, which at that time [1113]*1113was represented by Messerli & Kramer, commenced two separate earnings-garnishment actions against Whitehead. The papers necessary to commence the garnishments, were filed under the case numbers for the actions in which Discover Bank had obtained the judgments. Discover Bank served notice of the garnishments on Whitehead’s employer, General Dynamics. Discover Bank did not serve notice of the garnishments on Whitehead personally. The defendants assert that they served notice of the garnishments on a lawyer, George Peek, who had represented Whitehead during the proceedings leading up to the default judgments, but this fact is not alleged in the complaint. 'In any event, Whitehead learned of the garnishments when General Dynamics sent notice of the garnishments to him.

After receiving notice of the garnishments, Whitehead, now represented by different counsel, filed answers to the garnishments in both cases. Along with his answers, Whitehead filed motions to reopen the underlying cases in which the judgments were entered. As grounds for reopening the cases, Whitehead argued that the judgments were obtained improperly. Whitehead also sought léave to file a counterclaim against Discover Bank alleging violations of the Wisconsin Consumer Act. One of the alleged violations of the Consumer Act that Whitehead sought to assert as a counterclaim was based on Discover Bank’s alleged failure to properly serve notice of the garnishments on him.

After Whitehead filed his answers to the garnishments, motions to reopen, and counterclaims, Whitehead asked General Dynamics to stop garnishing his earnings pending a court hearing on these matters. General Dynamics informed Whitehead that it would continue garnishing his earnings unless it received a court order or stipulation of the parties stating that the garnishments should be put on hold. Whitehead then asked Discover Bank and Messerli & Kramer to enter into a stipulation -, providing that the garnishments would cease pending a hearing on the an-, swer .and motion. The defendants did not respond to this request, and General Dynamics'continued to garnish Whitehead’s earnings.

Meanwhile, the state court held a hearing in one of the two cases. The court denied the motion to reopen the case, reasoning that the request to set aside the judgment was untimely, as it was filed two years after the judgment had been entered. As far as the present record reveals, the court did not rule on any of the matters raised in Whitehead’s answer to the garnishment or counterclaims. Rather, the court in its minutes from the hearing stated that “the issue relating to garnishment can be filed in the small claims case.” Armstrong Deck Ex. 1 at p. 4 of 6. The “small claims case” was the other case in which Discover Bank had obtained a default judgment against Whitehead- and commenced an earnings garnishment. With respect to that case, a hearing was scheduled on the garnishment answer for August 7, 2014. However, prior to that date, Whitehead filed a petition under Chapter 128 of the Wisconsin Statutes, which allows wage earners to amortize debts over a period of up to three years. See Wis. Stat. § 128.21. While a debtor is making payments under a Chapter- 128 plan, creditors are prohibited from using execution, attachment, or garnishment to collect the debts that are subject to the plan. Once Whitehead filed for relief under Chapter 128? General Dynamics and Discover Bank stopped garnishing his wages. For this reason, the hearing on the garnishment in the small-claims case was cancelled. ■

In March 2015, the Whiteheads commenced the present action against Discov[1114]*1114er Bank and Messerli & Kramer.1 Their claims are based on acts and omissions committed by Messerli & Kramer in the course of the garnishments. First, the Whiteheads contend that Messerli & Kramer violated both the FDCPA and the Wisconsin Consumer Act when it commenced the garnishments but failed to serve a garnishment form upon Whitehead, as required by the garnishment statute. See Wis. Stat. § 812.35(3). The Whiteheads contend that this failure of service rendered the garnishments invalid, and that therefore when Messerli & Kramer collected payments from General Dynamics, it collected amounts not permitted by law, in violation of 15 U.S.C. § 1692f(l). The Whiteheads further contend that because the failure of service rendered the garnishments invalid, Messerli & Kramer falsely represented the legal status of the debt, in violation of 15 U.S.C. § 1692e(2)(a), when it represented to General Dynamics, the court, and the Whiteheads that the debt could be collected through the garnishments. For the same reasons, the Whiteheads contend that both Messerli & Kramer and Discover Bank violated Wis. Stat. § 427.104(l)(j) by claiming a right to collect Whitehead’s earnings through the garnishments when they knew or had reason to know that such a right did not exist.

The Whiteheads also contend that Mes-serli & Kramer violated both the FDCPA and the Wisconsin Consumer Act by collecting payments through the garnishments when it knew that Whitehead had filed answers to the garnishments that asserted defenses to the garnishments which the state court had yet to rule on. This claim is based on provisions in the Wisconsin garnishment statute that contain rules that the garnishee must follow when the debtor serves it with an answer. See Wis. Stat. §§ 812.37(3), 812.44(3). The Whiteheads contend that Messerli & Kramer’s continuing to collect payments from General Dynamics while the answers were pending caused it to collect amounts not permitted by law, in violation of § 1692f(l). The Whiteheads further allege that Mes-serli & Kramer’s continuing to collect garnishment payments while the answers were pending caused both it and Discover Bank to violate Wis. Stat. § 427.104(l)(j).

In their motion to dismiss, the defendants argue that the plaintiffs claims are barred by the Rooker-Feldman doctrine. In the alternative, they argue that the plaintiffs have failed to state claims upon which relief can be granted. See Fed. R.Civ.P.

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Bluebook (online)
118 F. Supp. 3d 1111, 2015 U.S. Dist. LEXIS 103617, 2015 WL 4668758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitehead-v-discover-bank-wied-2015.