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Frank v. Autovest, LLC

United States District Court, District of Columbia

September 29, 2019

PHYLLIS FRANK, et al., Plaintiffs,
AUTOVEST, LLC, et al., Defendants.



         Phyllis Frank brings this putative class action against Autovest, LLC ("Autovest") and Michael Andrews & Associates ("MAA") for actual and statutory damages under the Fair Debt Collection Practices Act ("FDCPA" or "the Act"), 15 U.S.C. § 1692 et seq. Frank claims that Autovest and MAA (collectively, "defendants") violated the FDCPA in a debt-collection action initiated by Autovest against Frank. See Am. Compl. ¶¶ 47-69 [Dkt. # 27].

         Pending before me is defendants' motion for summary judgment. See Defs.' Mot. for Summ. J. ("Defs.' Mot.") [Dkt. # 34]. Upon consideration of the briefing, the relevant law, and the entire record herein, and for the reasons stated below, defendants' motion for summary judgment is GRANTED.


         On May 5, 2011, Frank executed a Retail Installment Sale Contract ("Contract") with Monster Auto Credit ("MAC") to purchase a 2008 Chevrolet Impala. Dels.' Statement of Undisputed Material Facts ("Defs.' SOF") ¶ 1 [Dkt. # 41-1]; Pl.'sStatement of Disputed Material Facts ("Pl.'s SOF") ¶ 1 [Dkt. # 44-2]. MAC immediately assigned its interest in the Contract to First Investors Financial Services ("FIFS"). Defs.' SOF ¶ 2; Pl.'s SOF ¶ 2. Frank defaulted on the loan in August 2014, and FIFS repossessed the vehicle in August 2015. Defs.' SOF ¶ 4; Pl.'s SOF ¶4; Defs.' Mot., Ex. 15 at 12. At some point during this time period, FIFS assigned the Contract to First Investors Auto Receivables ("FIAR"). Defs.' SOF ¶ 3; Pl.'s SOF ¶ 3. In May 2016, FIAR reassigned the Contract back to FIFS. Defs.' SOF ¶ 5; Pl.'s SOF ¶ 5; Defs.' Mot., Ex. 31. FIFS then sold the Contract back to Autovest on May 31, 2016. Defs.' SOF ¶ 6, 7. Indeed, FIFS notified Frank by letter on June 1, 2016 that it had assigned the Contract to Autovest. Defs.' SOF ¶ 7; Pl.'s SOF ¶ 7.

         On October 4, 2016, Autovest filed a collections complaint against Frank in the Superior Court for the District of Columbia ("the Collections Action"), seeking a judgment for the outstanding balance on the loan, i.e., $8, 557.53 plus interest. Defs.' SOF ¶ 13; Pl.'s SOF ¶ 13; Defs.' Mot., Ex. 4 at 2, 3. Autovest attached a verification to its complaint, which stated as follows:

Christina Dunn, agent/officer/employee of the Plaintiff, being first duly sworn on oath, . . . affirms and states that he/she has authority to verify the attached complaint and verily believes the facts stated therein to be a true statement of the amount owing by the Defendants to the Plaintiff, exclusive of all set-offs and just grounds for defense.

         Defs.' Mot., Ex. 15 at 17; Defs.' SOF ¶¶ 15-16; Pl.'s SOF ¶¶ 15-16. At the time the verification was executed, Christina Dunn ("Dunn") was an employee of MAA, which acted as Autovest's servicing agent on Frank's loan. Defs.' SOF ¶¶ 8, 17; Pl.'s SOF ¶¶ 8, 17.

         On February 27, 2017, Frank filed an answer in the Collections Action, using a boilerplate court-issued form. Defs.' Mot., Ex. 6 at 5. The form directed Frank to state the reasons why "plaintiff was not entitled to have judgment as demanded." Id. Frank provided the following answer: "The company failed to notify me of the impending sale of the vehicle, a forwarding address was given the company (FIFSG) to send any and all information and mail about any impending actions." Id.; Defs.' SOF ¶ 21; Pl.'s SOF ¶ 21. At the top of the form, Frank filled in Autovest's name and address. Defs.' Mot., Ex. 6 at 5. She did not indicate that Autovest was not her creditor or that it was otherwise not entitled to enforce the debt. Defs.' SOF ¶ 22; Pl.'s SOF ¶ 22.

         On April 25, 2017, Autovest filed a motion for default judgment in the Collections Action. Defs.' Mot., Ex. 7. The motion attached an affidavit by Glenn E. Deuman ("Deuman"), which outlined the facts underlying the Collections Action, including: the loan to Frank, the subsequent assignment of the Contract to Autovest, Frank's default, the repossession of the vehicle, and the amount still due under the Contract. Defs.' SOF ¶ 23; Pl.'s SOF ¶ 23; Defs.' Mot., Ex. 7 at 9-11. Deuman further attested that he was "employed by Autovest, LLC." Defs.' Mot., Ex. 7 at 9.

         The motion for default judgment also attached an affidavit for attorneys' fees executed by Autovest's attorney. Robert Wagman ("Wagman"). Dels.' Mot., Ex. 7 at 41- 42. Wagman stated that his representation of Autovest was on a "contingency fee basis." Defs.' SOF ¶ 30; Pl.'s SOF ¶ 30. He then described the specific legal tasks performed in connection with the Collections Action, the amount of time spent on each task, and the hourly rate of each individual that worked on the tasks. Defs.' SOF ¶ 31; Pl.'s SOF ¶31. The affidavit sought $895.00 in fees, a lodestar amount computed by multiplying the total hours worked by the applicable hourly rates. Defs.' SOF ¶¶ 44, 47; Pl.'s SOF ¶¶ 44, 47. That amount was not a contingent fee based on the total debt owed by Frank. Defs.' SOF ¶ 47; Pl.'s SOF ¶ 47. Ultimately, Autovest did not collect any money from Frank in the Collections Action. Defs.' SOF ¶ 45; Pl.'s SOF ¶ 45.

         On December 23, 2017, Frank brought this action, claiming that defendants' conduct in the Collections Action violated the FDCPA. See Compl. at 7-10 [Dkt. #1]. On September 24, 2018, she amended her complaint, see Am. Compl., and on February 12, 2019, defendants moved for summary judgment, see Defs.' Mot. That motion is fully briefed and ripe for decision.


         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett,477 U.S. 317, 324 (1986). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court "must view the evidence in the light most favorable to [the nonmoving party], draw all reasonable inferences in [her] favor, and eschew making credibility determinations or weighing the evidence.'" Lathram v. Snow,336 F.3d 1085, 1088 (D.C. Cir. 2003). Nevertheless, if the nonmoving party presents facts that are contradicted by the record, such that no ...

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