United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE.
REMEMBERED on the 6th day of June 2017, the Court held a
hearing in the above-styled cause and the parties appeared
through counsel. Before the Court are Defendants Travelers
Casualty and Surety Company of America (Travelers) and
Rausch, Sturm, Israel, Emerson, & Hornik LLC
(RSIEH)'s Motion for Summary Judgment [#36], Plaintiff
Joseph Ozmun (Plaintiff)'s Response [#47] in opposition,
and Travelers and RSIEH's Reply [#51] in support;
Portfolio Recovery Associates, LLC (PRA) and Western Surety
Company (Western)'s Motion for Summary Judgment [#62],
Plaintiff s Response and Cross-Motion for Summary Judgment
[#64], and PRA and Western's Reply [#70]; and PRA and
Western's Second Motion to Strike Response [#69],
Plaintiff s Response [#71] in opposition, and PRA and
Western's Reply [#73] in support. Having reviewed the
documents, the arguments of counsel made at the hearing, the
relevant law, and the file as a whole, the Court now enters
the following opinion and orders.
lawsuit concerns PRA's efforts to collect Plaintiffs
outstanding credit card debt of $2, 065.21 (the Debt) after
March 20, 2015, PRA, represented by RSIEH, filed a petition
against Plaintiff in Texas state court to recover the Debt
(Underlying Lawsuit). Compl. [#1-1] Ex. C (Pet.) at 1. The
petition listed the Debt balance as $2, 065.21 and requested
"[a]ctual damages in the amount of $2, 065.21."
Id. at 1, 3. Plaintiff was served with the petition
in the Underlying Lawsuit. Sometime after being served in the
Underlying Lawsuit, Plaintiff paid $57.00 of his debt. PRA
Mot. Summ. J. [#62] at 2; PL's Second Resp. [#64] at 3.
because Plaintiff failed to timely answer the Underlying
Lawsuit and a maj ority of the Debt was still outstanding,
RSIEH filed a motion for default judgment on PRA's behalf
on November 5, 2015. The version of the motion for default
judgment docketed with the state court includes the motion
for default judgment pleading as well as supporting
documents. See PL's Second Resp. [#64-6] Ex. E
(Docketed Mot.). One such document is the affidavit of Meryl
Dreano, the custodian of records for PRA, indicating the Debt
totaled $2, 065.21 as of the date of the affidavit.
Id. (Dreano Aff.) at 10. The affidavit was signed
January 14, 2015. Id. No proposed default judgment
was included with motion for default judgment docketed in the
state court. See Id. Nevertheless, the motion for
default judgment pleading expressly asked the state court to
"grant [PRA]'s Motion for Default Judgment and award
[PRA] the relief requested in [PRA]'s petition by signing
and entering the attached proposed Default Judgment."
Id. at 4. No specific amount was requested nor was
the balance of the Debt listed in PRA's pleading. See
Id. at 2-A. It is disputed whether PRA's
motion for default judgment was served on Plaintiff, but a
default judgment was never entered in the Underlying Lawsuit.
PRA's motion for default judgment, PRA received a letter
listing Plaintiff as the sender and dated May 31, 2016,
stating the following:
I am writing to you regarding the account referenced above. I
refuse to pay this debt.
My monthly expenses exceed my monthly income; as such there
is no reason for you to continue contacting me, and the
amount you are reporting is not accurate either. If my
circumstances should change I will be in touch.
Compl. [#53-1] Ex. F (Debt Letter). On July 8, 2016, PRA
informed a consumer reporting agency of the Debt. PRA
reported a balance of $2, 008.21 on the Debt and did not
indicate the Debt was disputed.
months later, PRA moved for summary judgment in the
Underlying Lawsuit. On March 29, 2017, the state court
granted PRA's motion for summary judgment, issuing a
judgment in "the amount of $2008.21, which includes
credit for payments already made totaling $57.00 as actual
damages" PRA Mot. Summ. J. [#62-1] App. (State Court
Order) at l.
August 3, 2016, Plaintiff filed a complaint in this Court
alleging violations of the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. §§ 1692-1692p, and the Texas
Debt Collection Act (TDCA), Tex. Fin. Code §
392.001-404, against PRA, Western, RSIEH, and Travelers.
Compl. [#1]. In particular, Plaintiff claims PRA and RSIEH
(1) violated the FDCPA and TDCA by misrepresenting the Debt
balance and attempting to collect an extra $57.00 from
Plaintiff in the Underlying Lawsuit and (2) PRA violated the
FDCPA and TDCA by failing to report the Debt was disputed.
Am. Compl. [#53] ¶¶ 64-71. Western is the surety
company for the bond PRA has on file with the Texas Secretary
of State; Travelers is the surety company for RSIEH's
bond. Id. ¶¶ 9, 13.
February 21, 2017, Travelers and RSIEH filed a joint motion
for summary judgment. RSIEH Mot. Summ. J. [#36]. Following
two extensions, Plaintiff responded. PL's First Resp.
[#47]. Plaintiff also filed an amended complaint with the
Court's permission. See Am. Compl. [#53].
Travelers and RSIEH submitted a reply in support of their
motion for summary judgment, and shortly thereafter the Court
entered an order postponing ruling on the pending motion for
summary judgment to enable the parties to confer. Order of
Apr. 12, 2017 [#56]. Giving the parties thirty days from the
entry of the order to parley, the Court noted it
"expect[ed] a dismissal in this lawsuit . . . ."
Id. Nevertheless, the parties were unable reach an
the expiration of the thirty-day period, PRA and Western
filed a motion for summary judgment on May 25, 2017. PRA Mot.
Summ. J. [#62]. On June 6, 2017, the Court held a hearing to
gain perspective on the status of the issues. Subsequently,
on June 8, 2017, Plaintiff filed his response to the second
motion for summary judgment in combination with a
cross-motion for summary judgment. PL's Second Resp.
[#64]. PRA and Western filed a motion to strike Plaintiffs
response, and in the alternative, motion for a more definite
statement, as well as a reply in support of their motion for
summary judgment. Second Mot. Strike [#69]; PRA Reply [#70].
The pending motions are now ripe for the Court's
Legal Standard-Summary Judgment
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court "may not make credibility
determinations or weigh the evidence" in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party makes an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). Rule 56 does not impose a duty on the court to
"sift through the record in search of evidence" to
support the nonmovant's opposition to the motion for
summary judgment. Id.
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S. at 248.
Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. If the nonmoving
party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it
will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.
initial matter, the Court first considers PRA and
Western's second motion to strike and, in the
alternative, motion for a more definite statement.
See Second Mot. Strike [#69]. PRA and Western argue
the Court should strike Plaintiffs combined response and
cross-motion for summary judgment because the motion exceeded
the page limit and Plaintiff failed to file his dispositive
motion by May 25, 2017-the deadline listed in the scheduling
order. Id. Alternatively, PRA and Western ask the
Court to strike the portion of Plaintiff s response
requesting summary judgment or require Plaintiff to provide a
more definite statement by filing separate motions.
response does not appear to exceed the page limit when taking
into account items such as the caption and signature block.
See Local Rule CV-7(e)(3) ("These page limits
are exclusive of the caption, signature block, any
certificate, and accompanying documents.").
Additionally, while Plaintiffs cross-motion for summary
judgment was filed late-for which no good cause has been
shown-the Court nevertheless considers Plaintiffs summary
judgment motion for its own convenience. Granting
Defendants' request to strike Plaintiffs motion for
summary judgment at this point would only delay the
Court's summary judgment decision and prolong this
lawsuit. Therefore, the Court DENIES PRA and Western's
second motion to strike and, in the alternative, motion for a
more definite statement.
Court now turns to the merits of the cross-motions for
summary judgment. As stated above, Plaintiff alleges
violations of the FDCPA and the TDCA. Travelers and RSIEH ask
the Court to grant summary judgment in their favor, arguing
there was no misrepresentation as to the amount of the Debt
in the motion for default judgment and Plaintiff presented no
basis for the joinder of Travelers. Travelers and RSIEH also
request their fees and costs based on Plaintiffs alleged bad
faith in bringing this suit. Additionally, PRA and Western
request summary judgment, arguing PRA sought the correct Debt
amount in the motion for default judgment, Plaintiff does not
have standing, Plaintiff did not actually dispute his debt,