United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. #34]
RICHARD J. LEON UNITED STATES JUDGE.
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].
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.
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.
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
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.
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.
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.
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.
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.
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 ...